The exceptions of Swan to Runnels’ plea in abatement, were sustained by the Court below; and that is the error assigned in this case.

The defect of the plea is, that it states that Martin, the co-defendant, who alone resided in Galveston county, was released from all liability on the note; and refers to the facts stated in the petition, in verification of the plea, when the petition shows that the apparent release of Martin, by not bringing the suit at the first Term of the Court after the maturity of the note, was waived by Martin by a written indorsement on the back of the note. The plea, although sworn to, does not profess to state any fact that does not appear in the petition as therein stated. The waiver indorsed on the note reads as follows : “ We waive suit being brought on this note at the first Term of Court. May 3d, 1855. W. J. Kyle, H. B. Martin.” This is capable of two constructions, one literal, the other liberal. It may have meant that the waiver was to apply to one Term only; or it may have meant that they waived the statutory diligence of suing the maker at the first Term in order to secure the liability of the indorsers.-

There are two circumstances in the case favorable to the latter construction. It was made five months before the note became due; and Kyle, against whom there is no charge of collusion, did not contend that he was released, but suffered judgment to go by default against him for a large sum of money as indorser.

The facts of the petition, therefore, did not show that Martin was necessarily released; and the plea of abatement should have stated the fact of Martin’s release as an independent fact, irrespective of, and without reference to, what appeared in the petition ; and that averment might have been verified on the trial, by showing such facts as would have induced a literal construction to be given to the indorsement. The affidavit of the party to his plea, then, would not have reposed on the facts as stated *825in the petition, but upon the facts known or believed to have existed, independent of their mode of statement in the petition. There was no need of swearing to facts as stated in the petition; that would be available equally on exception. And the very fact that the affidavit reposes on facts as stated in the petition, shows that the party was not willing to swear that Martin was released, at the time suit was brought, as an independent fact. The plea in abatement, although sworn to, amounted to nothing more than a dilatory exception, whatever its form may have been, and the Court below did not err in overruling it. Judgment is affirmed without damages.

Judgment affirmed.