¶1Upon the facts offered to be proved, the defendant contends, that the plaintiff, the promisee of the note declared on, entered into an agreement with the promisor to extend the time of its payment, by reasqn of which the defendant, who was a surety only, is discharged; the principal having subsequently become insolvent.
¶2It is admitted that mere delay and indulgence on the part of the creditor will not discharge a surety. To effect such a discharge, there must be a binding agreement between the creditor and the principal debtor, that he will not proceed against him, which agreement can be enforced at law.
¶3Whether the facts offered to be proved in the present case would constitute such an agreement, or whether there was any such consideration moving between the parties, as the law would sustain, are questions perhaps not wholly free from doubt. But there being another ground upon which the case may be determined, we do not judge it necessary to settle whether the facts, if proved, would constitute a good defence.
¶4We are of opinion that the defendant cannot prevail in his defence, because the fact, that the three signers of the note with Green were merely sureties,' does not appear to have been known to the plaintiff. The note disclosed no such relationship, and no evidence was offered to prove a knowledge of it by the plaintiff. And such knowledge is not to be presumed in favor of the defendant.- If he relies upon the fact, he must prove its existence.
¶5The parties are to be treated agreeably to the circumstances in which they have represented themselves to stand, viz. as joint principals. The holder of the note had a right to treat them as such, as they had disclosed, upon the contract, no other relation.
¶6As all the signers of the note stand in the light of joint principals, the agreement offered to be proved between Green and the plaintiff can have no effect to discharge the other joint promisors. An agreement not to call upon one joint promisor, *288whether for a limited time, or not at all, although expressed in the form of a covenant not to she, will not avail the other promisors. Such an agreement or covenant is merely personal, upon which the party might have his separate remedy in case of a breach of it. It cannot be pleaded nor offered in defence, as a release, by the other principals. Story on Bills, §, 430. Oxford Bank v. Haynes, 8 Pick. 423.
¶7To bind the holder of a note to the legal consequence of discharging the sureties to it, by acts of forbearance and agreement not to sue the principal, he must have a knowledge of the relation in which he stands, before he shall be thus affected, if, upon the. contract itself, the parties hold themselves out as principals.
¶8As between the promisors themselves, a different rule prevails. When one of them is sued, he may prove that he was a surety, though the fact that he was such' does not appear upon the note, and had not been communicated to a co-surety; because the obligation to contribute is not the result of a contract between them, but rests upon the legal liabilities growing out of such relation.
¶9Exceptions overruled.