[Civ. No. 619. Third Appellate District.-October 11, 1909.]

THE PEOPLE, Respondent, v. Y. BELLAFONT and P. MONGA, Appellants.

CRIMINAL BAIL BOND-CONSIDERATION-RELEASE OF PRISONER FROM CUSTODY-SUFFICIENCY OF COMPLAINT.-A complaint upon a criminal bail bond which alleges that after an order fixing the bail of the accused, defendants appeared before the judge and executed the bail bond to the people in the sum fixed, and that upon the giving and approval of the bond the accused was released from custody, sufficiently shows that his discharge therefrom was in consideration of the execution and delivery of the bond.

ID.-BREACH OF BAIL BOND-FAILURE TO APPEAR FOR TRIAL-SUFFICIENCY OF AVERMENT.-The bond having been conditioned that the defendant bailed "will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will hold himself amenable to the orders and processes of the court," a breach of the bail bond is sufficiently stated by the averment that the case was regularly set for trial on a specified day, and was then regularly called for trial, and that the defendant having been theretofore duly advised of the time and place of such trial, then and there failed to appear for trial.

APPEAL from a judgment of the Superior Court of Shasta County. J. M. Head, Judge.

The facts are stated in the opinion of the court.

Braynard & Kimball, for Appellants.

W. D. Tillotson, and O. M. Chenoweth, for Respondent.

BURNETT, J.-The action brought upon a criminal bail bond resulted in a judgment by default against the defendants from which the appeal was taken.

The sufficiency of the complaint is assailed for the reasons: 1. That there is no allegation that Juan Santos (the principal) "was released from custody upon the execution and delivery of the bond"; and 2. "There is no allegation that any condition of defendants' obligation, as set forth in the bond has been broken."

Neither of these contentions can be maintained. As to the first, the allegation of the complaint is "That after said

order fixing the bail of said Santos in the sum of fifteen hundred dollars was made by said judge, the defendants herein appeared before the said judge and executed to this plaintiff an undertaking of bail in the sum of fifteen hundred dollars, in which undertaking of bail the defendants herein agreed to pay to the people of the state of California the sum of fifteen hundred dollars. . . . That upon the giving of said undertaking of bail by the defendants herein and the same having been approved by the said judge, George J. Hoadley, the said Juan Santos was released from the custody of the constable of the said Delta Township." It would, indeed, be difficult to aver more explicitly that the undertaking was executed by defendants, and that in consideration thereof the principal was discharged from custody.

The cases cited by appellants are not at all relevant, since they "all go to the point," as stated in Cohen v. Pearson, 57 Cal. 308, "that in actions like the present, the consideration for which the undertaking was executed and delivered must be alleged and proved.

The condition of the bond which is alleged to have been broken is that "The above-named Juan Santos will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court." The complaint shows that the case was regularly set for trial for December 7, 1908, in the superior court of Shasta county, and on said day "the said case was duly called to trial in said superior court, and the said Juan Santos having been theretofore duly advised of the time and place of said trial, then and there failed to appear for trial," etc. That the sureties undertook to produce Santos at the trial of the cause in the superior court when they promised that he would "appear and answer the charge in whatever court it may be prosecuted" is too plain for argument.

It is true that the liability of sureties is not to be extended beyond the terms of their contract, but we are at a loss to understand how it could have been shown more clearly that their covenant had been broken and their liability for the penalty had attached.

The judgment is affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 644. First Appellate District.-October 13, 1909.] RAUER'S LAW AND COLLECTION COMPANY, Inc., Respondent, v. ELMORE C. LEFFINGWELL, Appellant.

ACTION ON ASSIGNED NOTE-DEFECTIVE AVERMENT OF NONPAYMENTAMENDED COMPLAINT STATUTE OF LIMITATIONS.-The rule that when a new and different cause of action is for the first time set forth in an amended complaint, the statute of limitations runs to the date of the amended complaint, does not apply, where the complaint and amended complaint upon an assigned note set forth the same obligation, and the object of the amended complaint is merely to cure a defective averment of nonpayment, which in the original complaint alleged only nonpayment to the assignee, without including nonpayment to the assignor. ID.--AMENDED COMPLAINT NOT A DEPARTURE IN PLEADING CONTINUANCE OF SAME OBLIGATION TO PAY NOTE.-The amended complaint contained a proper amendment to the original complaint, and was not a departure therefrom in pleading. It involved a continuance of the same action on the same obligation to pay the past due note sued upon.

ID. COMMENCEMENT OF ACTION ON NOTE-RUNNING OF STATUTE STOPPED. The action was commenced as to the note then due by the filing of the original complaint setting forth the obligation to pay the note, and when so filed the running of the four years' statute of limitations upon that obligation was stopped for the whole action, notwithstanding any amendment relating only to its breach by nonpayment. ID. FINDINGS-SUPPORT OF JUDGMENT FAILURE TO FIND UPON DEFENSE OF WANT OF CONSIDERATION-EVIDENCE NOT SHOWN.-Where the findings made fully support the judgment, the failure of the court to find upon a plea of want of consideration set forth as a defense cannot be considered as a ground of error, when no bill of exceptions or statement of the case appears in the record showing that evidence was submitted sufficient to sustain such defense.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. H. Buck, Judge presiding.

The facts are stated in the opinion of the court.

J. J. Lermen, for Appellant.

Macks & Tomsky, for Respondent.

HALL, J.-This is an appeal from a judgment for plaintiff, and is presented to this court upon the judgment-roll alone.

The action is upon a promissory note executed by defendant to one George W. Wittman, who, prior to the commencement of the action, indorsed the note to plaintiff.

The original complaint was demurred to upon the sole ground that it did not state facts sufficient to constitute a cause of action, the point of the demurrer being that the complaint did not sufficiently allege nonpayment of the note. The allegation in the complaint in this regard is, "That no part of said sum of $630, or interest due on said note, has been paid to plaintiff," which of course is not inconsistent with full payment to Wittman, the assignor of plaintiff.

The demurrer was sustained and an amended complaint was filed, which is in all respects the same as the original complaint, save that it sufficiently alleges nonpayment of the note. More than four years elapsed between the maturity of the note and the filing of the amended complaint, so that unless the filing of the original complaint tolled the running of the statute the action was barred. Defendant pleaded the bar of the statute by demurrer to the amended complaint, and the action of the trial court in overruling this demurrer presents the only important question to be determined upon this appeal.

Undoubtedly when a new and different cause of action is for the first time set up in an amended complaint, the statute of limitations runs to the filing of such amended complaint. The argument of appellant is that as the original complaint stated no cause of action, while the amended complaint stated a perfect cause of action, the latter necessarily stated a new and different cause of action; or, in other words, that the cause of action out of which the judgment resulted was for the first time put in suit when the amended complaint was filed. In a narrow sense this may be true, but not in the sense in which we ordinarily and judicially speak of the commencement of actions or of causes of actions. The purpose of each

complaint was to enforce the very same obligation. The first complaint was defective only in that it did not sufficiently allege a breach of the obligation. An attempt to allege such breach was made. The second complaint simply remedied the defect of the first complaint. There can be no question

but that if the running of the statute was not involved in this matter, no lawyer would for one moment contend that the amendment filed in this case was not a proper one-that is, that the amended complaint was not a departure in pleading. "An action is commenced in this state by the filing of a complaint." (Code Civ. Proc., sec. 405.) An action upon any obligation founded upon an instrument in writing executed within this state may be brought within four years from its maturity. (Code Civ. Proc., sec. 337.) The obligation in this case was the obligation to pay the money promised in the note. The filing of the first complaint was the bringing of an action on this particular obligation. The filing of the amended complaint did not bring an action on a new obligation, but it was a continuance of the same action upon the same obligation.

It cannot be properly said that no action was brought on the obligation sought to be enforced by the amended complaint until the amended complaint was filed. An action was brought on this same obligation when the original complaint was filed, and we have no doubt that it was sufficient to bar the running of the statute on the obligation.

We have not overlooked the cases cited by appellant from the state of Illinois, which certainly do lend support to his contention. (McAndrews v. Chicago etc. Ry. Co., 222 Ill. 232, [78 N. E. 603]; Eylenfelt v. Illinois Steel Co., 165 Ill. 185, [46 N. E. 266]; Foster v. St. Luke's Hospital, 191 Ill. 94, [60 N. E. 803], and other cases.) The reasoning of those cases does not commend itself to our judgment. The Illinois rule has been followed by a divided court in Missouri. (Missouri etc. Co. v. Bagley, 65 Kan. 188, [69 Pac. 189].)

The contrary rule has been followed in Iowa. (Myerson v. Kirt, 68 Iowa, 124, [26 N. W. 22].)

In this state the precise question involved has never been determined by any appellate court; but in Frost v. Witter, 132 Cal. 421, [84 Am. St. Rep. 53, 64 Pac. 705], it was held that a complaint that counted on a promissory note might be amended by setting up a mortgage given to secure the payment of the promissory note, although in the meantime the statute had run against the mortgage. This ruling was predicated upon the proposition that the "obligation sought to be enforced that is to say, the obligation to pay the money agreed to be paid"-was the same in either case. Much more is the