dered at defendant's instance and request. The court found that, in a former action brought by plaintiff against defendant, it was adjudged that plaintiff did not render to defendant, at the latter's instance or request, the services alleged in the complaint in that action, and that defendant was not indebted to plaintiff therefor; that the services mentioned in the complaint herein are the same services alleged in the complaint in the former action. The judgment in the former action was held to be a bar to plaintiff's cause of action set up herein, and judgment was entered for defendant. From this judgment, and an order denying his motion for a new trial, plaintiff has appealed.

Appellant contends that the complaint in the former action was upon an account stated, or upon a new contract, by the terms of which the defendant agreed to pay, and plaintiff agreed to accept, $1,000, in payment of the services alleged to have been rendered. The allegations of that complaint were sub stantially as follows: Defendant employed plaintiff to find a party who would take a lease of certain premises for a term of years, and promised to pay him therefor, out of the first rents collected, 21⁄2 per cent. of the amount of rent to be paid during the term; that plaintiff found a party willing to take the premises, and on October 10, 1889, said party and defendant entered into a contract of lease for a term of 10 years at a rental of $625 per month, payable monthly in advance, from April 10, 1890; that plaintiff's compeusation under said agreement amounted to the sum of $1,875; "that thereafter there was an accounting by and between said plaintiff and defendant for and about the compensation to be paid by said defendant to said plaintiff for said services, and, in consideration of immediate payment by said defendant to said plaintiff of the sum of one thousand dollars, it was then and there agreed by and between said plaintiff and said defendant, on or about the 15th day of October, in lieu of the agreement herein before mentioned, the said defendant should pay, and said plaintiff receive, in full satisfaction for said services, the sum of one thousand dollars cash, and defendant then and there paid to plaintiff the sum of one hundred dollars on account; but, though often requested, said defendant has failed and refused to pay the remainder of said sum, to wit, the sum of nine hundred dollars, which is now due and owing from defendant to plaintiff." The care with which the particulars of the original contract.-the character of services to be performed, the exact amount to be paid therefor, and manner of payment,-and the result of plaintiff's efforts under it, are set forth in the complaint in the former action, indicates that the pleader had in view something more than merely a declaration on an account stated. The complaint was evidently framed for a double purpose, and as there was no demurrer for uncertainty, or on the

ground that two causes of action were im properly united, there is no doubt the plaintiff could have used it as a basis of recovery on either the original contract alleged, and services performed thereunder, or on the new agreement that the plaintiff should accept $1,000 in consideration of immediate payment. Having gone to trial upon the issues thus tendered by himself, and the court having determined all of them against him, he is now bound by the decision. He cannot litigate the same question twice. In the former action the court decided that the services alleged were performed at the request of, and as the agent of, the party to whom the premises were leased, and not at the request of defendant; and, although in that action an express promise to pay a certain amount was alleged, the finding is conclusive in this action on the same question that was involved, viz. were the services performed at the request or instance of defendant? The judg ment and order are affirmed.

We concur: HARRISON, J.; GAROUTTE, J.

BETHELL v. ROGERS. (No. 15,384.) (Supreme Court of California. Oct. 24, 1893.) APPEAL PRACTICE-TIME OF FILING TRANSCRIPT -COURT RULES.

Rule 2 of the supreme court, which requires the transcript to be filed within 40 days after taking an appeal, is not superseded, nor is the time of filing extended for 5 days, by rule 11, which allows the appellee 5 days in which to examine the transcript presented by appellant and to certify to its correctness.

Department 1. Appeal from superior court, Contra Costa county.

Action by F. C. Bethell against C. W. Rogers. Judgment for plaintiff. Defendant appeals from an order denying a new trial. Appeal dismissed.

A. D. Spivalo, for appellant. W. S. Tinning, for respondent.

HARRISON, J. Motion to dismiss the appeal. Judgment was rendered in this case in favor of the plaintiff, June 24, 1890, and an order was afterwards made denying defendant's motion for a new trial. From this order the defendant appealed on the 29th of April, 1892. May 25, 1893, the respondent gave notice to the appellant of this motion to dismiss the appeal upon the ground that the appellant had failed to file the printed transcript of the record within the time prescribed by rule 2 of this court. At the time of giving the notice, the transcript on appeal had not been filed, and was not filed until June, 1893. It appears from the affidavits that in the latter part of June, 1892, Mr. Weller, at the request of the attorney for the appellant, went to the office of the attorney for the respondent in Martinez, and there met W. S. Wells, who

informed him that the attorney for the respondent was absent from the county of Contra Costa; that said attorney for the respondent was in fact absent from said county, and did not return thereto until about the 6th of July; that Weller asked affiant to certify to said transcript for said respondent's attorney, but was informed that he had no authority to act in the matter; that Weller thereupon requested him to forward the transcript to the said attorney by mail, which Wells agreed to do, and which he did; that said attorney was at that time at Cazadero, but did not receive the transcript so forwarded to him; that, after his return to Martinez, respondent's attorney received a letter from the attorney for the appellant requesting him to return said transcript, and that he endeavored to trace the same through the mail, but failed to do so, and never did receive said original transcript, and had no other communication with appellant's attorney until after the present notice to dismiss the appeal was given.

Rule 11 of this court provides that if a party shall present to the attorney of the adverse party a transcript on appeal in a civil cause, and request his certificate that the same is correct, and said attorney, upon such request, shall for a period of 5 days neglect or refuse to join in such certificate, the costs of procuring a proper certificate from the clerk shall be taxed against him. This rule does not supersede the provision of rule 2 which requires the transcript to be filed within 40 days after taking the appeal, nor does it extend the time for filing the transcript until the expiration of the period given to the adverse party to examine the same. At the time the transcript left with Wells to be forwarded to the respondent's attorney, nearly 60 days had elapsed after the appeal had been taken; and, if it could be assumed that his construction of rule 11 gave him 5 days' additional time, he has presented no excuse for his neglect to file the transcript at the expiration of that period, or at least as soon as he had every reason to believe that the attorney for the respondent did not intend to certify to its correctness. The appeal is dismissed.

was

We concur: PATERSON, J.; GAROUTTE, J.

MONTGOMERY v. SAYRE. (No. 18,132.) (Supreme Court of California. Oct. 27, 1893.) RELEASE OF SURETY.

1. One who gives his note as collateral to a note made by a corporation and indorsed by another person is a surety, as regards both maker and indorser; and, when the owner of the principal note has taken judgment on it against the maker and indorser, by releasing the latter he releases the surety.

2. A creditor who has a judgment lien on land of the principal debtor which is fairly

worth in the market enough to pay the whole debt, if he combine with the owner in selling it at private sale for less than it is worth, releases the surety on the debt.

3. To show that the land was sold for less than its value at a private sale negotiated by the owner and a lienholder, the proof is not confined to the cash price at a forced sale, but it may be shown that such tracts in that region had never been sold for all cash, but always for part cash and part on mortgage.

4. On an issue of the real value of land at the time it was sold, evidence as to the pries realized by the purchaser on sales of small parts of it a few months after his purchase is not necessarily incompetent, but its admission is regulated by the discretion of the court.

In bank. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by A. Montgomery against Albarnus L. Sayre, executor of A. L. Sayre, deceased, on a promissory note. Judgment for defendant. Plaintiff appeals. Affirmed.

For reports of former appeal, see 25 Pac. Rep. 552; 27 Pac. Rep. 648.

Arthur Rogers and W. F. Goad, for appellant. Geo. A. Nourse, for respondent. MCFARLAND, J. This is an appeal by plaintiff from a judgment in favor of defendant, and from an order denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal, (91 Cal. 206, 27 Pac. Rep. 648,) and it need not be repeated here.

The first question in the case is whether or not Sayre, deceased, made the $10,000 promissory note to appellant, sued on, as surety for W. S. Chapman. Respondent contends that this question was decided affirma tively by this court on the former appeal and that such decision is the law of the case. This court did say in its opinion on that appeal that "Sayre was, in law, a surety;" but we will not inquire into the somewhat complicated question whether that statement was necessary to the determination of that appeal, and therefore the law of the case, because we think that the correctness of that statement otherwise appears. Indeed. it appears from the complaint itself, which includes the presentation of the claim to the executor. It is not pretended in the complaint that the Sayre note for $10,000 was not given as security, in some form, or that an action could be maintained upon it, as on any ordinary promissory note, without aver ring extrinsic facts other than those appearing upon its face. The complaint avers that on April 19, 1884, the Pioneer Mining Com pany, a corporation, made and delivered to appellant, Montgomery, its promissory note for $110,000, and "that said note was indorsed by Wm. S. Chapman." (The evidence shows that the indorsement was preceded by the words, "Demand, notice, and protest waived April 19, 1884.") It is then averred "that at the time of said delivery of said note, and to secure the payment of the same, there was delivered to plaintiff,

by way of pledge, all the capital stock of said corporation, except thirty shares thereof, and said corporation did execute to plaintiff its mortgage on the Pioneer mine, in Sierra county in said state, and said A. L. Sayre, now deceased, who was then living, did make, execute, and deliver his promissory note, hereafter designated as the 'Sayre Note,' bearing even date herewith, for the sum of ten thousand dollars, ($10,000,)" the same being the note here sued on. It is then further averred that several payments were made from time to time on said note for $110,000; that afterwards plaintiff foreclosed said mortgage on the Pioneer mine; that the proceeds of the sale of the mine under said foreclosure were applied to the payment of said note, but were not sufficient to satisfy it; that a deficiency judgment was entered and docketed against said corporation and against said Chapman for $61,554.13; that thereafter certain payments were made on said note and judgment; and that there remains due and unpaid on said note and judgment the sum of $34,551.20. It is further averred that said corporation has no other property, and that its capital stock is valueless, and upon these averments plaintiff bases his right to recover the amount of the Sayre note. From the foregoing averments, it seems quite clear to us that Sayre was a surety for Chapman,-for Chapman as well as for the mining company. It appears that on April 19, 1884, there was made and delivered to appellant a promissory note for $110,000 signed at the bottom by the Pioneer Company, and indorsed by Chapman, and that, "to secure the payment of the same," Sayre, deceased, made the "Sayre note," for $10,000. It was to secure the $110,000, just as it stood,-with the names of the re sponsible parties thereto, the maker and indorser written therein and thereon,-that Sayre made his note. The only liability which he assumed to appellant was that if the persons who signed said $110,000 note -the one, in form, as maker, and the other as indorser, with demand and notice waived -should fail to pay the same, he (Sayre) would be liable for the same to the extent of his $10,000 note. He based his contingent liability upon the probable financial ability of both the mining company and Chapman. As to him, they were both principals; and he was exonerated if, by any act of appellant, the latter's rights or remedies against either the mining company or Chapman were impaired, suspended, or destroyed. And this conclusion is made still more apparent by the fact that the $110,000 note was merged in a deficiency judgment against both the mining company and Chapman.

Sayre, then, being a surety, he was exonerated (1) if appellant, Montgomery, released Chapman from all liability under said judgment, and thus released the surety; or (2) if Montgomery, having a judgment lien upon land of Chapman, which, if sold at its real

value, would have realized a sufficient amount of money to satisfy all indebtedness of the latter to the former, including said judgment, united with Chapman in selling and conveying said land at private sale to one Hughes for a price far less than its real value. The jury returned a general verdict for defendant, no special issues having been submitted to them; and it is quite clear that they were warranted by the evidence in finding the first of the said two propositions in favor of respondent,-that is, that Montgomery released Chapman. And there is no specification of the insufficiency of the evidence to support such a finding, or of any erroneous ruling of the court as to the admissibility of evidence on that point. Respondent contends that the general verdict imports a finding in his favor of all the material issues, and therefore a finding that appellant released Chapman; and that, this being so, it is immaterial whether or not the court committed any errors with respect to the second question as to the value of the land sold to Hughes. Appellant contends, however, that it cannot be known upon what ground the jury based their verdict, and therefore, if the court committed errors about the question of the value of the land, the judgment should be reversed. We will assume, for the purpose of this decision, that appellant's view of the matter is correct, because we do not think that the court committed any reversible error in its rulings concerning the value of the land.

Ap

With respect to the question of the value of the land, appellant took a number of exceptions to the rulings of the court in passing upon offered evidence, and instructing the jury on that subject. The various exceptions, however, present, mainly, one point, which may be stated as follows: pellant contended that the only question proper to be asked witnesses on the subject of value was, what would the land have brought if respondent had taken out an execution, and had it sold by the sheriff at public auction for full cash value? while the court admitted evidence that, in the region of the land in question, large tracts of land had never been sold for all cash, but for from onefourth to one-third cash, and the balance on reasonable time, and at a reasonable rate of interest, secured by mortgage on the land sold, and allowed witnesses to be asked the general question, "what was the fair market value" of the land at the time of the sale to Hughes? In thus ruling, the court, in our opinion, did not commit error. The respondent declined to pursue his lien against the land, and sold it at private sale; and, having done so, the question before the jury was the difference between the amount for which it was sold, and its fair market value at the time of sale; and, in arriving at the real value of the land, the jury were not confined in this case, any more than they would have been in any other case, to what it would have brought at a forced sale for cash. They

had the right to consider the character and situation of the property, and the usual methods by which sales of such property were effected, where there were parties wanting to sell, and parties wanting to buy. Indeed, it would have been practically impossible to have determined the market value of such land upon the supposition of full cash payment, for there had been no such sales. It was proper, therefore, for the jury to have such information as the said ruling of the court allowed them. The testimony admitted tended to show the fair market value of the land, and furnished proper aid to the jury in determining such value. The case of Cassin v. Marshall, 18 Cal. 689, cited by appellant, dealt with facts very different from those in the case at bar. It is to be remarked, also, that the sale from appellant to Hughes was for a very small amount in cash, and the balance on time, secured by mort

gage.

It is also contended that the court erred in allowing some testimony of the amounts for which Hughes sold some small parts of the land "a few months" after the sale to him. This, considering the other evidence in the case, would be a matter of too small importance to work a reversal of the judgment, even it be conceded that the ruling was erroneous. But we do not think that the ruling was erroneous. While the thing to be determined is the value on the day in question, still, evidence is not necessarily confined to that very day. Evidence of value for short periods before and after the day in question has been frequently allowed. Its allowance is greatly within the discretion of the court, and, under the circumstances of this case, we do not think that such discretion was abused. The judgment and order appealed from are affirmed.

We concur: DE HAVEN, J.; FITZGERALD, J.; GAROUTTE, J.; HARRISON, J.

WAGNER v. SUPERIOR COURT OF LOS
ANGELES COUNTY. (No. 15,506.)1
(Supreme Court of California. Oct. 27, 1893.)
INSOLVENCY-PROCEEDING TO VACATE DISCHARGE
-WHO MAY COMMENCE.

Where a person has been discharged in insolvency, the court has no jurisdiction to hear a petition by his assignee to annul the certificate of discharge, since, under Insolvent Act 1880, § 53, providing that "any creditor" of an insolvent debtor who has obtained such discharge may contest its validity on the ground that it was fraudulently obtained, such a proceeding can only be commenced by a creditor. In bank.

Petition by L. M. Wagner for a writ of prohibition to restrain the superior court of Los Angeles county from proceeding under an order made by it directing petitioner to appear and show cause why an order made on a petition for insolvency discharging her from her debts should not be vacated. Writ granted.

1 For opinion on rehearing, see 34 Pac. Rep. 820.

W. H. Pollard, for petitioner. Mr. Graff, for respondent.

PER CURIAM. Application for a writ of prohibition. It appears that on September 28, 1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the possession of the assignee, and granted to the petitioner here a certificate of discharge from all debts and claims existing against her at the date of the filing of her petition to be adjudged insolvent, and also made an order discharging the assignee. When these orders were made, the insolvency proceedings were ended, and the court had no further jurisdiction over the person of the insolvent, and this jurisdiction could only be restored by an application upon the part of some creditor of the insolvent to set aside and annul the decree or certificate discharging her from her indebtedness, as provided by section 53 of the insolvent act. Certainly, after the insolvency proceeding was thus ended, the court was without authority to proceed under either section 24 or section 47 of the insolvent act, and examine the petitioner here, or other persons, for the purpose of ascertaining whether or not all the property of the insolvent estate had come into the hands of the assignee. It seems, however, that since the making of the orders referred to, two petitions have been filed in the su perior court, each praying that the certificate of discharge granted to the petitioner herein be annulled upon the ground of alleged fraud in obtaining it. One of these petitions was filed by the assignee in the insolvency proceeding, and the other by a creditor of the insolvent Wagner. The court thereupon made an order requiring the petitioner herein to appear on October 30, 1893, and show cause why the order discharging her from her indebtedness should not be vacated, and upon the same day, upon application of the assignee, the court made an order requiring the petitioner here to appear before the court upon a day named for examination in relation to her property, and also directed that subpoenas should issue requiring the attendance as witnesses of other persons claiming to own such property. The object of this proceeding is to prohibit the court from proceeding under this latter order. We think the application must be granted. The court is without any jurisdiction to hear the petition of the assignee, asking that the certificate of discharge be annulled. Such a proceeding can only be commenced by a creditor of the insolvent. Section 53, Insolvent Act; Sanborn v. Doe, 92 Cal. 152, 28 Pac.

Insolvent Act 1880, § 53, provides that "any creditor" of an insolvent debtor who has obtained a discharge from his debts may contest the validity of the discharge on the ground that it was fraudulently obtained.

is proceeding seems to be based upon this petition, and is void. In the matter of the petition filed by the creditor, the petitioner and the other persons named in the order may be required to give their depositions under section 2021 of the Code of Civil Procedure, or to appear in open court and give their testimony upon the issues arising upon such petition and the answer thereto. the writ of prohibition issue.

Let

PEOPLE v. BAKER. (No. 21,004.) =(Supreme Court of California. Oct. 27, 1893.) FORGERY-MORTGAGE OF HOMESTEAD - INFORMATION-ALLEGING VENUE-UTTERING FORGED IN

STRUMENT-EVIDENCE-VARIANCE.

1. An information is not defective merely because the word "information" does not appear in the body of it.

2. The words "county of Los Angeles, state of California," having been used in the first part of an information, an allegation thereafter that the crime was committed "at the county and state aforesaid" is a sufficient averment of

venue.

3. Signing the name of a married man to a mortgage of property on which there is a homestead declaration, if done with intent to defraud him and the man from whom it is proposed to raise money thereon, may be forgery, though the mortgage would not have been good without the execution of it by both the husband and wife

4. Placing the mortgage on record because the one who was to loan money on the mortgage desired it on record before he examined the title, was a sufficient uttering of the forged instrument.

5. The fact that the mortgage in evidence had attached a certificate of acknowledgment, while the one set forth in the information did not have a certificate, did not constitute a fatal variance.

6. The mortgage, as set forth in the information, having contained a copy of a note which it was given to secure, there was no error in allowing proof of the signing of the note as well as the mortgage, both being parts of the same transaction, one preliminary to the other.

In bank. Appeal from superior court, Los Angeles county.

Edward L. Baker was convicted of forgery, and appeals. Affirmed.

Z. G. Peck and S. M. White, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment, and also from an order denying a motion for a new trial. The appellant makes a great nany points in his briefs, and elaborately argues them, and we will notice briefly what we consider the most important of such oints.

1. Appellant contends that the information s fatally defective because the word "in'ormation" is not used in the body of that

as a heading of the pleading, and the body of the pleading commences as follows: "The said Edward L. Baker is accused by the district attorney," etc. But, as the pleading alleges all the facts necessary to constitute the crime sought to be charged, it is not defective merely because the word "information" is not used in the body of the instrument. The variation from the usual form was, we presume, the effect of oversight, or perhaps of an unexplainable desire to take a new departure; but this variation is not sufficiently material to make the pleading invalid. We think, also, that the averment of venue is sufficient. The words "county of Los Angeles, state of California," having been used in the first part of the information, it was sufficient afterwards to allege that the crime was committed "at the county and state aforesaid."

2. The alleged forgery was of a certain mortgage, purporting to have been signed by one Morris M. Green; and it is contended by appellant that because said Green was a married man, and there was a homestead declaration on the property covered by the mortgage, therefore no forgery in law could be committed by signing the name of Green alone to the instrument. But if the instrument was falsely made in the name of Green, with intent, as is alleged in the information, to defraud the said Morris M. Green and one Strassforth, from whom the money was to be borrowed on the mortgage, the act was forgery, whether or not, as a matter of law, the mortgage would have been good without the execution of it by both husband and wife. The mortgage was placed on record in the recorder's office by the appellant, or by one Hoy, who was the principal in the alleged crime, because Strassforth, who was to loan the money on the mortgage, desired it to be placed on record before he examined the title; and we think that, under the circumstances, this was a sufficient uttering of the alleged forged instrument, although it was not in any other way delivered to Strassforth, who about that time began to suspect the fraud.

3. The mortgage introduced in evidence had attached to it a certificate of acknowledgment, while the copy of the mortgage set forth in the information did not have such certificate. We do not think that this was a fatal variance.

4. The mortgage as set forth in the information contained a copy of a promissory note which it was given to secure, and we do not think that the court erred in allowing proof of the signing of the note as well as the mortgage. They were both parts of the same transaction, and one was preliminary to the other.

5. We have examined the instructions given to the jury by the court, and those asked by defendant and refused, and we do not see any errors committed by the court in