the mortgage he gave to Camarillo, had the direction that judgment for plaintiff be no title to the mortgaged premises. His entered in accordance with the above opinright to redeem springs from the fact of the execution and delivery of the mortgage, and in such a case it is no concern of the mortgagee whether or not the mortgagor, in point of fact, has a valid title to the mortgaged premises, or any part thereof." All that the plaintiff can receive by the reconveyance demanded by him is whatever passed by the mortgage deed of August 7, 1882. He certainly cannot obtain by nor require in such a reconveyance any adverse or superior title subsequently and in good faith acquired by the mortgagees, and a reconveyance from the mortgagees should be limited to the interest conveyed by the deed

for appellant. B. F. Thomas, for respond- | plaint that the plaintiff ever paid any money

ent.

whatever for, or on account of, defendant; that it does not sufficiently appear from FOOTE, C. This action was brought by said complaint that the plaintiff's cause of the plaintiff to recover from the defendant action alleged in said complaint is not the sum of $1,000 and interest. It is alleged barred by the statute of limitations; that in the complaint that the plaintiff, with there is a defect in parties plaintiff to said three other persons, became the sureties of action, in this, that it appears from said the defendant upon a promissory note, pay- complaint that P. N. Newell should be made able to one Byron Stevens, for the sum of plaintiff to said action, instead of the plain$3,000, the money borrowed, for which the tiff herein; that said complaint does not, note was given, being for the use and ben-nor does any paragraph thereof, severally efit of the defendant, and received and used state facts sufficient to constitute a cause by him alone; that the defendant neglected of action." The demurrer was overruled, to pay the note, or any part of it; that and the defendant answered, objecting to Newell, one of the sureties, paid upon the the complaint that it did not state facts note, as principal and interest, the sum of sufficient to constitute a cause of action; $3,855, of which sum the defendant repaid that the plaintiff had no legal capacity to him the sum of $1075 only; that the plain-sue; that the cause of action, if any, accrued tiff, Stone, about the 1st of August, 1878, on the 10th of January, 1881, in favor of changed his residence from the state of Cal- Newell, and that it is barred by the statifornia to the state of New York, and the ute of limitations under the provisions of said 1st of August left the state of Califor- sections 337 and 339 of the Code of Civil Pronia, and was absent therefrom until Decem-cedure; denying that the time of payment ber, 1883; that about the 1st of March, 1884, of the note to Stevens was extended to the Newell, the surety who had paid the prom- 1st of July, 1880, or that he neglected to pay issory note to Stevens, demanded of the note, or any part of it; and alleging Stone, the plaintiff, that he should pay the that before the note became due he had sum of $1,000, as plaintiff's pro rata share of mortgaged certain real property to the the money which Newell had paid on ac- sureties on his note to Stevens, sufficient in count of their suretyship on the promissory value for the payment and satisfaction of note; that the plaintiff, on the 1st of March, the note, and that subsequently he conveyed 1884, made, executed, and delivered to New- to Newell, one of the sureties, a portion of ell his promissory note in the sum of $1,000 the premises thus mortgaged of the value in full satisfaction of the amount of money of $1,400, which the sureties afterwards which the plaintiff should contribute to sold and applied the proceeds to the payNewell for his payments for and on account ment of the Stevens note. He further of the promissory note to Stevens, and claimed that the payments alleged to have Newell gave to the plaintiff a receipt in full been made by Newell were from the prosatisfaction for the plaintiff's liability to ceeds of the property mortgaged and concontribute to him for the payments he veyed to the suretics. He denied that he made as heretofore stated; that the defend- had only paid $1,075 of the amounts paid ant has not paid the plaintiff anything, by Newell on the Stevens note, and alleged either principal or interest, for the sum of that he paid the whole of what Newell paid, $1,000 thus paid out for the defendant to and that nothing is due from him to Newell, Newell; that one of the four sureties, Hamil- All the other allegations of the complaint ton, paid nothing on the note to Stevens, and are denied. For further defense the answer contributed nothing to Newell; and that set up that if Stone contributed anything Hamilton died insolvent. The complaint towards the repayment of Newell for what was demurred to on the grounds (1) that he had paid out for and on account of the it did not state facts sufficient to constitute defendant, such payment was entirely vola cause of action; (2) that it did not state untary, and without any consideration facts sufficient to constitute a cause of ac- good in law, and that the plaintiff ought tion in this, "that it appears from said com- not to recover against him because of his plaint that the plaintiff has not legal capac-discharge in insolvency on the 24th day of ity to sue; second, that it appears upon December, 1879, by the county court of the face of said complaint that the last pay- Santa Barbara county, Cal. The anment made upon the note, set out in the swer was afterwards, upon leave of the first paragraph thereof, was made on the court, amended so as to defend the action 10th day of January, 1881, by P. N. Newell, on the ground that, so far from neglecting and that the cause of action, if any, accrued or refusing to pay the Stevens note, the deon said 10th day of January, 1881, in favor fendant, before the note became due, on the of said P. N. Newell, and that the cause of 5th day of August, 1878, executed and delivaction in favor of said P. N. Newell, if any, ered to the plaintiff and Newell a deed abis barred by the statute of limitations, and solute in form, but by way of a mortgage, that the cause of action, if any, was barred conveying to Stone and Newell certain by the statute of limitations, at the time of real estate in Santa Barbara county, fully the pretended demand and the making of described in said deed in trust, to sell and the note for $1,000 by plaintiff to P. N. New- dispose of the property conveyed, and to ell, on the ist day of March, 1884, alleged in apply the proceeds in satisfaction of the said complaint; that said complaint is am- Byron Stevens note, on which Stone and biguous, unintelligible, and uncertain in Newell were the defendant's sureties; that this, that it does not sufficiently appear the conveyance thus made was accepted by from said complaint whether or not the Stone and Newell in trust for the purposes note referred to in the eighth paragraph above specified, and was, at Stone's re thereof was ever paid by plaintiff; that it quest, recorded on the 13th of August, 1878, does not sufficiently appear from said com-in the proper office. It is further alleged

precluded from recovery by those statutes. Section 351, Code Civil Proc. Stone's right of action accrued on the 1st of March, 1884, when he reimbursed Newell for his expenditures by executing the promissory notes, which were taken as absolute payment for the liability of Stone to Newell for Stone's

that the property so conveyed was more under no legal obligation to do so; that than sufficient in value for the payment and he could have invoked the statute of limitsatisfaction of the note to Stevens, and in- ations against Newell for this contribution. terest; that it was worth $5,000, and that This seems to be based upon the proposiplaintiff and Newell, after its conveyance tion that although Stone was absent from to them, and before the 1st day of March, the state during most of the time that New1884, disposed of a large portion of it for ell was making payments to Stevens, who the sum of $3,500, and that at the time of was also a non-resident, yet that the statthe commencement of this action there re-ute began to run in favor of Stone as soon mained a portion of the property thus con- as Newell paid the first installment of inveyed undisposed of and held by the sure- terest, $360, on the note, when Stone was ties of the value of $500. A demurrer was in the state, and continued to run, notwithfiled to this amendment, on the grounds-standing his absence from the state after First, that it did not state facts sufficient that time. Code Civil Proc. § 351. The to constitute a cause of action; second, court found, upon sufficient evidence, that that, in so far as it refers to any mortgage Stone, about the 1st of August, 1878, reor deed of trust, it does not state any fact moved from the state of California to the constituting any defense. "Said instru- state of New York, where he remained unment, if a mortgage, has become extin- til December, 1883. Up to the time of guished by lapse of time, and could not Stone's removal Newell had not paid more have been enforced when this action was than his share as surety, and all that he commenced, nor could it be now enforced." paid after that time, for which Stone was This demurrer was overruled, and the cause liable for contribution, was paid during was tried without a jury, upon the issues Stone's absence from the state. Unless, made by the complaint and answer as therefore, this action was not brought unamended. The plaintiff had judgment as til after the time had elapsed, prescribed by prayed for. From that and an order refus- sections 337 and 339 of the Code of Civil ing a new trial this appeal is prosecuted. Procedure, for the barring of the action One of the reasons urged by the defend-after Stone's return, he (Newell) was not ant why the judgment cannot stand is, to use his own language, "that the plaintiff could not sue the defendant on his implied promise on the note, because his remedy on the note was merged in a superior remedy, i. e., the mortgage given by defendant to his sureties." In support of this proposition he argues that the remedy in assump-share of the money paid to Stevens, the sit on an implied contract originally vested in the sureties against their principal, became merged on their accepting a mortgage security therefor, and their only remedy was an action for foreclosure. The fact which he relies on to uphold his legal proposition is that the mortgage given to all four of the sureties was never legally satisfied, because Byron Stevens, the payee of the note which the defendant and sureties had executed, was not a party to the satisfaction of the mortgage, and that, as In this connection the appellant claims the mortgage was not satisfied, the deed that the payment by Stone's notes to Newin form, which the court found to be in ell of Stone's pro rata of the money which trust, but not a mortgage, was a mort- Newell had paid to Stevens for the defendgage, and was supplementary to the first ant was no payment or reimbursement afmortgage, and the remedy of foreclosure of fecting defendant on account of his liability it could only be pursued. But Stevens has on the Stevens note. But it seems to have been paid from the proceeds of the property been held in this and in most of the other deeded to the sureties, so far as it was sold, states that the acceptance of a promissory whether it was a mortgage, or, as the note in satisfaction and payment of a debt court found, a deed in trust only for a spe- due from one individual to another is paycific purpose which was carried out, and he ment of the first debt. Griffith v. Grogan, is not here complaining of the satisfaction 12 Cal. 323, and cases cited. When Newell of the mortgage. The person who does paid the money for the defendant as his complain, and who seeks to have the mort-surety in satisfaction of the Stevens note gage declared unsatisfied, was a party to he had the right to be reimbursed by the its satisfaction, and is excluded by his ac-defendant for what he expended in that betion in the premises from disputing its prop-half. Sections 2847, 2848, Civil Code; Estate er and legal satisfaction.

payee of the note. Brandt, Sur. § 199. The statute did not begin to run against Stone until the 1st of March, 1884. He filed his complaint on the 17th day of September, 1885, less than two years after the statute began to operate, and was not barred. Newell's right of action against Stone was not barred, because the latter did not return to California until Dceember, 1883, and Stone paid Newell by notes on the 1st of March, 1884.

of Hill, 67 Cal. 244,7 Pac: Rep. 664. He had The further contention is made that the also the right to be reimbursed by Stone finding of the court, that the action is not for whatever amount Stone, as co-surety, barred by the statute of limitations, is was liable to pay Stevens as his proporagainst law. To support this claim the tion, and which had been paid by Newell to appellant seems to argue that when Stone Stevens. When Stone paid Newell his liaexecuted and delivered his promissory|bility to him, by the execution of the promnotes, which were agreed to be taken as an issory notes taken in absolute payment and absolute payment and reimbursement to satisfaction of the debt, then Stone had the Newell of Stone's share of the money paid out to Stevens by Newell, he (Stone) was

right, as a surety for Hammell, to look to him for reimbursement, because then Stone

occupied towards him pro tanto the same | mentioned in the first finding hereof, was relation that Newell did in paying Stevens not a resident of the state of California, such amount, for Stone had paid to Newell, and was absent therefrom during all the not only what he was bound to contribute proceedings in the Matter of the Insolvency to reimburse him, but also so much of what of James Hammell, and did not in any way Newell had paid for the defendant, and to submit either himself or said promissory that extent Stone then stood towards the note to the jurisdiction of the court in defendant as if he had originally paid so which such proceedings were had." This much of the debt to Stevens. Newell had being so, Stevens was not affected in his the right, in the first instance, to give his rights by the discharge in insolvency as note to the creditor, Stevens, in full satis- pleaded. Rhodes v. Borden, 67 Cal. 7, 6 faction for the debt of the defendant, and Pac. Rep. 850, and cases cited. This discould then have sued him without having charge in insolvency left Newell and Stone paid the note. Brandt, Sur. § 181. Stone, still responsible to Stevens. having paid to Newell, to his satisfaction, by note, his pro rata contribution of what Newell had paid for the defendant to the creditor, had a right to be reimbursed to that extent by Hammell for the actual payment in money of that sum by Newell to Stevens. The matter stood just as if Stone, instead of Newell, had paid Stone's proportion in money to the creditor for Hammell, and Stone has the same right as Newell had when he paid the debt in money.

But it is claimed that Newell, at the time Stone executed the notes, had no right of action against Stone for contribution, because he had not exhausted the securities in his hands, had not sold all the land included in the deed in trust, and applied the proceeds to the payment of the Stevens note; that his failure to do this exonerated Stone from any liability to reimburse Newell for what he had paid Stevens. The authorities cited in support of this proposition are not in point. There is no evidence in the record | but what Newell realized, as far as he could reasonably do so, all that could fairly be obtained from the sale of the property held in trust, and that, after applying it all to the payment of the Stevens note, he was out of pocket as much money as would have made Stone's share in contribution amount to what his notes called for. There is no negligence, laches, or fraud shown in the matter, and Stone was liable to contribution when he gave his notes.

At the time of the insolvency proceedings Stone could not have brought suit against Hammell, because then Stone had paid out nothing as surety, and until he satisfied and paid Newell there was no breach of the implied promise of Hammell to reimburse him. Brandt, Sur. § 199. If Stone had no debt against Hammell which was provable in insolvency, it cannot be that he is barred of recovery by the proceedings and dischargein insolvency which took place prior to the time when his debt and right to sue Hammell accrued. In a case involving the same principle which is invoked here, it was said: "The debt was not made certain until after the defendant's discharge. It is like the case of a surety paying a debt after the discharge of the principal. The debt must be certain and fixed at the time of the insolvent's assignment." Buel v. Gordon, 6 Johns. 126.

We perceive nothing in the point that Newell should have been made a party. He had paid the note and been paid by Stone his contribution. Stone then had the right of action upon an implied contract against the principal, Hammell, for reimbursement. The court found, upon evidence which is not challenged by any specifications of particulars of its sufficiency, that Hamilton, one of the sureties, died insolyent in 1878, and contributed nothing towards the payment of the note in the first instance by Newell, or repayment to We perceive nothing of merit in the point him as a co-surety. But the objection is made that Newell paid the debt voluntarily made that a certain record of the probate to Stevens without any liability to do so. court proceeding offered and admitted in The principal creditor, as it seems to us, evidence was not competent, relevant, or could have sued the sureties whenever the material. We think that the evidence tendnote became due and remained unpaid. ed to show the financial standing and inThere was no necessity for him before do-solvency of Hamilton, and was properly ing so to have had the land held by the admitted. The evidence was sufficient to surety, Newell, as trustee, sold and the pro- support the findings attacked, and, perceeds applied to the payment of his debt, ceiving no prejudicial error, we advise that even if it could have been done under the the judgment and order be affirmed. trust deed, for, as the record shows, this was done in good faith, and without any delay, by Newell, and the proceeds applied to the payinent of the Stevens note.

We concur: BELCHER, C. C.; Gibson, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are aflirmed.

(80 Cal. 229)

PEOPLE V. GOGGINS. (No. 20,527.) (Supreme Court of California. Aug. 29, 1889.)

LARCENY-INDICTMENT,

The further point is made that the discharge of Hammell in insolvency discharged him of all indebtedness to Byron Stevens, the holder of the promissory note which the sureties executed with the defendant, and that the finding or decision of the trial court, that the insolvency court had no jurisdiction over Stevens, is against law, Under Pen. Code Cal. § 959, providing that and that the discharge of the defendant in the indictment or information is sufficient if it can insolvency is a bar to the recovery of the be understood therefrom that the act or omission plaintiff in this action. In its twelfth find-charged is clearly and distinctly set forth in such a ing of fact, which is, we think, warranted standing to know what is intended, an indictment manner as to enable a person of common underby the evidence, the trial court found “that charging the felonious stealing of "fifty sheep, the Byron Stevens, the payce of the said note property of Townsend & Carey," is not fatally de

fective as not designating any owner of the prop-| $25 each,' the cattle being the property of erty alleged to have been stolen, especially where defendant pleads guilty.

Commissioners' decision. In bank. Appeal from superior court, Mendocino county; ROBERT MCGARVEY, Judge.

J. A. Cooper, for appellant. George A. Johnson, Atty. Gen., for the People.

Page Bros." The defendants claimed that the bond was void; that no offense was alleged in the complaint; that "Page Bros." was not a statement of the name of the owners of the property alleged to have been stolen. The appellate court held that the point was not well taken; that the bond was not void; and that the offense of larceny was sufficiently charged in the complaint.

FOOTE, C. The defendant was indicted for the crime of grand larceny, and pleaded guilty to the charge. From the judgment By parity of reasoning it may be said here rendered, he appeals. His argument is that that the indictment was not fatally defectthe judgment should be reversed because ive and void as designating no owners of the indictment failed to charge him with the property alleged to have been stolen. any crime whatsoever. It alleges, among There was, perhaps, a somewhat obscure other things, that the defendant "did will-statement of the names of the owners, in fully, unlawfully, and feloniously steal,take, the sense that they were not designated and drive away fifty sheep, the property as a partnership or a corporation, but it is of Townsend & Carey," etc. The defend- | plain that, to a person of common underant claims that it does not appear there- standing, it would appear that the propfrom that Townsend & Carey were part- erty stolen was owned by two persons, ners in business, or a corporation; that Townsend and Carey, who did business in there is no specific allegation to whom the that name, for such is the common manner sheep belonged; that in pleading guilty to upon signs, letter-heads, signatures to docthe charge contained in the indictment he uments, etc., in which firms of individuals did not confess himself. to have committed are commonly designated. Especially any offense. should this be held to be the case where one charged with the larceny of fifty sheep adniously carried away such sheep, and that they were the personal property of persons who were known by the name of Townsend & Carey, the ordinary way of designating a partnership. It is hardly possible that the defendant was not fully aware of the nature of the crime charged against him in the indictment, and the persons who were the owners of the property he was alleged to have stolen. But while this is so, it is to be regretted that an indictment so easy to frame properly, should have been drawn, as was the one in hand, liable to be assailed most sharply. We advise that the judgment be affirmed.

The sufficiency of indictments or informations in California are to be tested by stat-mits by his plea of guilty that he has feloutory enactments. Section 959 of the Penal Code provides that "the indictment or information is sufficient if it can be understood therefrom * * Subsec. 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." It must be presumed that the defendant was a person of common understanding. Would not such an individual have known from the language of the indictment that he was charged with the larceny of fifty sheep, the personal property of two individuals comprising a partnership of Townsend & Carey? And when he pleaded guilty, was he not intending to confess that he stole fifty sheep from the partnership composed of the two individuals just mentioned?

We concur: BELCHER, C. C.; GIBSON, C.

PER CURIAM. For the reasons given in
the foregoing opinion, the judgment is af-
firmed.
(80 Cal. 296)

PEOPLE V. ELLIOTT. (No. 20,495.)
(Supreme Court of California. Aug. 31, 1889.)
CRIMINAL LAW-CHANGE OF VENUE — Murder-
EVIDENCE-INSTRUCTIONS.

The case of People v. Henry, 19 Pac. Rep. 831, was one where the defendant was charged with the "felonious entry of some building of the San Diego and Coronado Water Company, with the intent then and there to commit larceny." It was contended in that case "that as the informa- 1. Under Pen. Code Cal. §§ 1033, 1035, allowtion does not state whether the San Diego ing change of venue in a criminal case on apand Coronaco Water Company is a corpor-plication of defendant, on the ground that a fair ation or a partnership, and does not give which the action is pending, and providing that, if and impartial trial cannot be had in the county in the names of any persons composing the cor- the court is satisfied of the truth of defendant's poration or partnership, there is, in a legal representation, an order must be entered for the sense, an entire absence of any allegation removal of the action to a county free from a like as to the party intended to be injured." objection, the application is addressed to the disThere, as here, the cases of People v. cretion of the court, and, when supported by deSchwartz, 32 Cal. 160, and People v. Bo-fendant's affidavit alone, a denial of the change will not be reversed on appeal. gart, 36 Cal. 245, were cited "as conclusive of the question.' The appellate court held in that case that the information sufficiently designated the owner of the building burglarized.

In People v. Barnes, 65 Cal. 16, 2 Pac. Rep. 493, which was an action upon a bail bond, "one Wilson was arrested on a complaint charging him with grand larceny in stealing 'two head of cattle, of the value of

2. An application for the issuance of subpoenas for witnesses to prove a ground for a change of venue is properly denied, where such application is supported only by the statement of defendant's attorney not made under oath, especially where it does not appear that the clerk had, on application, refused to issue the subpoenas, or that defendant could not procure the attendance of such witnesses.

3. Where it appears that accused was brought before the committing magistrate on the 28th day of April, and that by his consent the examination