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ian herein occurred prior or subsequently to the nineteenth of February, 1872, does not appear distinctly either from the evidence or findings. But the presumption must be indulged to sustain the judgment of the court that it occurred prior to the day in February, 1872, above-mentioned. We are further of opinion that the decree or order of the probate court made in 1878, adjudging the amount due by the guardian, did not bind the sureties. Hastings, the guardian, never had notice of this proceeding, and therefore the sureties were not bound. The service of the order of the court, made on Hastings in Washington city, was no service. Such service could only be made by citation, (sections 1707–1709, Code Civil. Proc.,) and here it appears that no citation was issued, but an order was made by the court and directed to be served.
It is said that Hastings had left the state at the time that it became essential to notify him, and that, therefore, the citation could not be served on him; and, further, that it is provided in section 1710, Code Civil Proc., that “when personal notice is required, and no mode of giving it is prescribed in this title, it must be given by citation,” and as there could be no personal service, the person to be cited having left the state, citation was not required. We are of opinion that service could be made in a mode provided by law. By section 1709, Code Civil Proc., it is declared that “the citation must be served in the same manner as the summons in a civil action." A summons in a civil action can be served on a person who has departed from the state, by publication, (sections 412, 413,) and by section 1709, above quoted, a citation can be served in the same way. The mode of procedure under this statute for serving summons by publication, where a person has departed from the state, or resides out of the state, etc., is applicable to the service of a citation by publication.
As to what is enacted in section 1710, Code Civil Proc., its meaning is that actual service is directed to be made on the party personally, and not by publication; it must be made by citation. This is not inconsistent with service of a citation by publication in a case where the party to be served has departed from the state, or resides out of it. T'he two sections, 1709 and 1710, may thus be readily reconciled. It certainly could not have been the intention of the legislature to say in one section that a citation can be served by publication, and in the next that a citation could only be served by actual service.
From what has been said just above our conclusion is that the account of Hastings, guardian, as settled by the probate court, having been made without such notice as the law required to the guardian, was not binding on Houghton, and was not admissible in evidence against him. Nor do we concur in the view contended for by counsel for plaintiff that the service by publication of the citation would be a nullity. To sustain this view counsel cites Pennoyer v. Neff, 95 U. S. 714, and Hart v. Sansom, 110 U. S. 151; S. C. 3 Sup. Ct. Rep. 586. The features of the case before us are entirely different from those presented by these cases. Those features are that Hastings, a citi. zen of the state, is appointed and qualifies under its statutes as guardian of the person and estate of a minor, and by virtue of this qualification and appointment gets into his hands the property of the minor. He binds himself by this appointment to make a true inventory of all the estate, real and personal, of his ward that shall come to his possession or knowledge and to return the same within such time as the judge of the court appointing him shall order; to dispose of and manage all such estate according to law and for the best interest of his ward, and faithfully to discharge his trust in relation thereto; to render an account on oath of the property, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court shall direct, or whenever it shall require, and at the expiration of his trust to settle his account with the probate judge or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands or due from him on such settlement to the person or persons who may be lawfully entitled thereto. Hitt. Gen. Laws, $$ 8, 35, pp. 488, 491. The guardian thus appointed is bound to settle his accounts whenever directed by the probate court. The notice to settle issued by the court must, of course, be in accordance with that prescribed by statute. The guardian receives his appointment under these provisions of law, and, as the law prescribes a service of such notice by a publication of the citation as of a summons in an ordinary civil action, we are of opinion that the contention cannot be held sound that the substituted service by publication of the citation to a guardian so appointed, who has left the state without settling his accounts, is not such notice as is legal and binding on him. A person appointed guardian under our statutes may be regarded as having consented in advance that, upon leaving the state, service of notice may be made upon bim by publication. See Probate act, Hitt. Dig. $$ 288, 289, p. 852. This is in consonance with the rule laid down in Vallee v. Dumergue, 4 Exch. 290, in these words:
“It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them."
Such a rule is approved in Pennoyer v. Neff. See 95 U. S. 735.
By the bond executed by Houghton in September, 1871, he became a co-surety with Haight, and so continued to be until the taking of the new bond with eight sureties on the nineteenth day of February, 1872, when Haight was discharged by order of court from all future defaults of the guardian. We say that Haight and Houghton were co-sureties for the reason that they were responsible for the same amount of the ward's estate, and that Houghton became surety in place of Livermore, who was Haight's co-surety. Houghton, in effect, took Livermore's place as surety, and as Livermore was co-surety with Haight, Houghton, who took his place, became also co-surety with Haight. It appears that Haight was released, for a sum of money paid by him in 1877, by the ward, (plaintiff here,) who had then attained her majority. Did not this release Houghton? It is said it did not, because at that time the Civil Code was in force, and that section 1543 of that Code provided that “a release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors, nor does it affect their right of contribution from him.” Conceding that section 1543, Civil Code, would apply to sureties who became such after the Code went into effect, we are of opinion that it does not apply to the bond herein, which was executed before that time, if, when the bond executed by Houghton was entered into, it was the law that the release of one surety jointly bound with another released that other. This rule, if it was then law, entered into Houghton's contract of suretyship, and became a vested right, of which he could not be deprived by subsequent legislation.
The rule above stated was held to be law in this state in People v. Buster, 11 Cal. 220, which was decided in 1858. In that case, the court said:
“A surety has a right to stand on the precise terms of his contract. He can be held to no other or different contract. In this case, the sureties all contracted together, and with reference to the common responsibility. In case of a breach or loss, each surety had his recourse for contribution on his fellows. The discharge of any one of the obligors affected the contract as to all. It made it, indeed, a different contract from that made by the parties.”
If the discharge or release of one surety made it a different contract from that made by the parties, certainly such discharge or release of a surety would release a co-surety. This rule, declared in 1858, in People v. Buster, has never been changed in any way, unless by section 1543, Civil Code, supra, which, for the reasons above given, has no application here. It follows from the foregoing that the release of Haight by the plaintiff in 1877 released Houghton from any responsibility on bis bond. See Murfree, Official Bonds, $ 721. We are referred by the counsel for respondent to a series of cases which may be found cited in section 383 of Brandt on Suretyship, which tend to establish the rule that a release of one surety only releases his co-sureties to the extent that such released co-surety would otherwise have been liable to contribute to his co-sureties. We have carefully examined those cases, and they certainly lay down the rule as just stated above. But we think that the rule applicable here has been settled in this state by People v. Buster, supra, and we do not feel authorized to overrule it and establish a new one. We will add here that if Houghton remained responsible for the defaults of Hast
ings, after the execution of the new bond by the eight sureties, ne was a joint surety with them, and as some of these eight sureties were released by the plaintiff after she attained her majority, by the operation of the rule laid down in People v. Buster, supra, Houghton was released.
The judgment and order denying a new trial must be reversed and the cause remanded for a new trial. Ordered accordingly.
We concur: MORRISON, C. J.; McKEE, J.; MYRICK, J.; Ross, J.
(2 Cal. Unrep. 569)
PEOPLE v. LEE. (No. 20,098.)
Filed November 25, 1885. 1. CRIMINAL TRIAL - RIGHT OF DEFENDANT TO CONTINUANCE FOR ABSENCE OF
It is error, in a criminal trial, to refuse the defendant a continuance, asked for on the ground of absence of witnesses from the county, where, from the uncontradicted affidavit of the defendant, it appears that such witnesses were regularly subpænaed; that the facts which defendant expected to prove by them, and which are stated in the affidavit, are material to the defense; that he could not prove the same facts by any other witnesses; and that he ex
pected to be able to procure their attendance, if the trial was postponed. 2. PLEA OF SELF-DEFENSE-FACTS TO ESTABLISH.
To establish plea of self-defense, and entitle defendant to acquittal, it is not necessary that the fact of danger to life and limb should be shown by the evidence beyond a reasonable doubt, and to charge the jury that such proof is
necessary, is error. 3 CRIMINAL CASE, EVIDENCE OF CHARACTER OF DEFENDANT.
In a criminal case the jury must take evidence of character into consideration for the purpose of determining whether it creates a reasonable doubt of guilt, and the consideration of such evidence by the jury is not confined to cases where the guilt of the accused is doubtful. Department 2. Appeal from superior court, county of Mono. W.0. Parker, W. H. Viaden, and Paul W. Bennett, for appellant. The Attorney General, for respondent.
MORRISON, C. J. The defendant was convicted in the superior court of the county of Mono on an information charging him with an assault with intent to commit murder, and from the judgment of conviction, as well as from the order denying his motion for a new trial, he appeals to this court. It will not be necessary for us to examine all the alleged errors imputed to the court below, particularly those in connection with 70 instructions in the case, as the judg. ment will have to be reversed upon the first point made on the appeal. When the case was called for trial in the court below defendant interposed a motion for a continuance, which was denied.
The basis of the application was the non-appearance of two witnesses in behalf of the defense. These witnesses, named Hayes and Hill, were absent from the county of Mono, and were, respectively, in the counties of Mariposa and Calaveras. The defendant, in order to have them subpænaed according to the statute in such cases provided, made the affidavit and procured the order named in section 1330 of
the Penal Code, and in pursuance thereof the witnesses were duly and regularly subpænaed in the counties where found. Notwithstanding this fact they failed to appear at the trial, and, in consequence of their non-appearance, defendant moved the court for a continuance of the cause, which motion was denied. The motion was accompanied by an affidavit showing due service of a subpæna; what facts the defendant expected to prove by the absent witnesses; that the facts (stating them) were material to the defense; that he could not prove the same facts by any other witnesses; and that he expected to be able to procure their attendance, if the trial was postponed to some future day. The sufficiency of the affidavit was not questioned by the attorney for the people, but the motion was denied for the reasons stated in the following order:
“The court then and there denies the defendant's motion for a continuance of the trial of said cause, giving as a reason for denying the same that the court is the guardian of the interests of the county; that a jury is already in attendance, and the court cannot put the county to the expense of calling another jury; and that it may appear during the course of the trial that other witnesses could testify to the same facts as mentioned in defendant's affidavit for continuance; and the affidavit shows that the evidence would be cumulative.'
The only proper reason given by the court for denying the defendant's motion for a continuance is that the affidavit shows that the evidence would be cumulative. We fail to find any such thing in the affidavit. On the contrary, the affidavit states “that the said facts, which affiant can prove by Hayes and Hill, (the absent witnesses,) cannot be proved by any other person or persons.” By section 1052 of the Penal Code it is provided that “when an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day." Under the provisions of the law as well as under article 1, $ 13, of the constitution, the defendant was entitled to the personal attendance of his witnesses at the trial, and on a proper showing (which was made in this case) to a continuance, and it was error to deny such motion. It was so held by the court in the case of People v. VIcCrory, 41 Cal. 458. The court there says:
“There was a sufficient showing as to the materiality of the absent witnesses, and there was apparently no lack of diligence in the effort to procure their attendance. The attorney general has failed to point out any particular wherein the affidavit was defective, and I discover none. I think the showing was sufficient, and the motion should have been granted, particularly as this was the first motion for a continuance."
All that was said by the learned justice (CROCKETT) in the foregoing case applies with fuil force to the case we are now considering.
There are other errors assigned which it is unnecessary for the court to pass upon, excepting some in relation to the instructions. As we have already remarked, about 17 instructions were moved by the prosecution and 58 by the defense. It is reasonable to
It is reasonable to suppose that