Aud v. Magruder. ment of itself-a new contract undertaken for another, that the latter will perform his contract. The difference between a maker and an endorser or guarantor is, that the contract of the first, by its terms, imports an unconditional obligation to pay moneythat of the last, by its terms, imports a conditional obligation. The rules of law settle this species of contracts as well as others, and prescribe how they may be created-their legal effect, and mode of enforcement. The creditor may take his security in either form; the other parties may contract or not as they choose; but the contracts, when made, must stand or fall by the legal rules prescribed for them respectively. There is no magic in the words "surety" or "guarantor," which gives to a contract made by this class of contractors any effect denied to the contracts of other persons. A surety for another may bind himself to a creditor for his principal, if he uses apt words of obligation, just as an agent may be bound for his principal, or a principal for himself the obligation arising from the language of contract, not the man who makes it. We can see no reason, if the parties so agree, why the guarantor or endorser may not bind himself, absolutely and primarily, to pay the debt of another; nor why a man may not as well bind himself primarily to pay a note for another as surety for the other, as well as secondarily. He may pledge his goods or credits, or note, for him, and bind himself, without respect to any act to be done by the principal or the creditor. Precisely such is the nature of an obligation made in absolute terms, on a consideration, by A, to pay so many dollars to B by a certain day, though the note should say in the body of it that A promised to pay for C, or as surety for C. If such a note could be enforced as an original promise, if made by A alone, how is it less an original promise when made by A and C, jointly and severally, as in this case, though the joint note showed that A made it as surety for C? It is immaterial to the payee how or why A signs it; that is a matter between the two payors; he is satisfied with holding them both as principals to him, and in doing this he is only enforcing the language of their own voluntary contract, according to its own plain words. In truth, the error, as we take it, in Bryan v. Berry, is, in supposing that whenever a party is shown to be a surety he is necessarily, without reference to the form of the engagement, a guarantor. A guarantor may, usually, be a surety, but a surety is not necessarily a guarantor. The Court say: "It is not so much the position of the party's name upon the paper which denotes his liability, (although it frequently does so,) but it is the intention with which he executes it, if such intention is made to appear by the note itself, which determines whether his liability is primary or secondary." This may be; but we think, with great deference, that the position of the names beneath the words which import a direct, primary obligation to pay the money to Aud v. Magruder. the payee, is conclusive evidence of that intention; the bare name on the back of the paper might not be. The word "surety," written opposite the name of one of the makers, is held to indicate no more than that, as between the payors, such maker is his surety. It is convenient for the purpose of evidence, in case the surety has to pay the money, but it does not in any way control the words of the note as between such payor and the payee; for, as we said before, there is no necessary inconsistency between an absolute engagement to pay money, and paying it on behalf or as security for another man. (Story on Promissory Notes, 57; Hunt v. Adams, 5 Mass., 358; Morris v. Bird, 11 Mass., 438, and the numerous authorities cited in the appellant's brief.) If the law be as we have stated, it is useless to inquire into the intention of the payor in such a case; the intent must be presumed to be according to the law. But if we were to hazard any opinion upon the subject, apart from this, we incline very strongly to think that, among business men, the idea is very general that a person signing a note as surety for another, makes himself immediately and directly responsible for the debt. In overruling the case of Bryan v. Berry, we feel less reluctance because we think that the principle there laid down is of injurious import. We think that principles of commercial law, long established and maintained by a consistent course of decision in the other States, should not be disturbed; that the tendency of such disturbance, in any instance, is to confusion and uncertainty, and gives rise to perplexing litigation, and doubts and uneasiness, in the public mind. Almost any general rule governing commercial transactions, if it have been long and consistently upheld as a part of the general system, is better than a rule superseding it, though the latter were much better as an original proposition. Men knowing how the law has been generally received and repeatedly adjudged, govern themselves and are advised by their counsel accordingly; but if Courts establish new rules whenever they are dissatisfied with the reasons upon which the old ones rest, the standards of commercial transactions would be destroyed, and commercial business regulated by a mere guess at what the opinion of Judges for the time might be, and not by a knowledge of what the doctrines of recognized works of authority and the precedents of the Courts are. The commercial law has a system of its own, built up by centuries and the wisdom of learned jurists all over the world. It is not local, but applicable to all the States, with few modifications; and California, eminently commercial in its character, and in close commercial connection with the other States, finds her interest and safety in adhering to the well-settled general rules which prevail in those States as the laws of trade. We repeat, the stability and certainty of these rules are of more importance Hickman v. O'Neal. than any fancied benefits which might accrue from any innovation upon the system. Innovation begets innovation, and we can not always see with clearness what is to be the consequence of the new rule established. This case itself is a good illustration; for, if the doctrine be carried to its logical consequences, and whenever it appears, on the face of a security for money, a party is a surety, he is entitled to be held as a guarantor, what becomes of undertakings, acceptances for accommodation, etc.? for, in the latter cases, why might not parol evidence be admitted to shew that the party was only accommodation acceptor, in a contest between the original parties, as to shew the same fact, as is frequently done, when suit is brought to recover money of the principal which the acceptor has paid on the acceptance? And so, where the party does not sign as surety, but really is such? The doctrine of stare decisis, seriously invoked by the respondent's counsel, can have no effect; or, if any, only the effect to induce us the more readily to return to a principle recognized, we believe, for many years everywhere else in the commercial world. The conservative doctrine of stare decisis was never designed to protect such an innovation. Judgment reversed, and cause remanded. HICKMAN v. O'NEAL (SHERIFF) et al. The question, as to whether the act of the Legislature organizing the Superior Court of the city of San Francisco, was, in its general provisions, constitutional, is put to rest upon the doctrine of stare decisis. The act of the Legislature, giving the power to the late Superior Court of the city of San Francisco to send its process beyond its territorial limits, was constitutional. That Court was no less "an inferior Court," from the possession of the power to send its process out of the city. Its jurisdiction was not enlarged by the possession of that power. The prescribing of this mode, or any other mode, of enforcing its decree or exercising its powers, is merely a matter of remedy or practice, which is left to the legislative direction. "Jurisdiction is the power to hear and determine;" but after the determination of a matter over which the Court has this cognizance, it can not be contended that a law, fixing the mode by which effect is to be given to a lawful judgment, is not a mere subject of municipal regulation, which has nothing to do with a question of jurisdiction. That Court was not intended to be an inferior Court in respect to the mode of enforcing its process, but in respect to the character of the subjects of its jurisdiction, and a subordinate relation to other tribunals. The case of Meyer v. Kalkmann, (6 Cal., 582,) overruled. APPEAL from the District Court of the Fifth Judicial District, County of San Joaquin. This was a suit in equity to prevent the sale, under execution, Hickman v. O'Neal. by the defendant O'Neal, as sheriff of San Joaquin county, of certain real estate, claimed and possessed by the plaintiff. The respondent filed this bill, averring his possession of and title to certain real estate in the city of Stockton, which he purchased at sheriff's sale, under an execution against Adams & Co., and also claimed it under a tax sale. The judgment under which respondent claimed title, was rendered in the late Superior Court of the city of San Francisco; subsequently to the plaintiff's purchase, the same premises were levied upon by an execution issuing from the District Court of the county of San Joaquin, and the sheriff advertised and was proceeding to sell the property under it. The respondent enjoined the sale. The title, at the time of the levy and sale under the first execution, was admitted to be in the defendants in execution, Adams & Co.; and the possession of respondents, at the time of the suit, was also conceded. The Court below decreed that the injunction be made perpetual, and that plaintiff recover his costs. From which decree the defendants appealed to this Court, and assigned as error the decree of the Court, on the ground that respondent had no title in said premises, the late Superior Court possessing at the time no power to send its process to enforce its judgments beyond the limits of the city of San Francisco. Winans for Appellants. So far as plaintiff relies in the Court below upon a claim of title to the premises, derived through the Superior Court of San Francisco, the question has been settled adversely to his claim by the decision of this Court in the case of Meyer v. Kalkmann, 6 Cal. R., 582, wherein it is held that the act giving to the Court the power to extend its jurisdiction, or to let its process run beyond the territory of the city of San Francisco, is invalid, and we rest this branch of the case, without further consideration, upon the doctrine of stare decisis. The sale of the premises, having been made under an execution issued from the said Superior Court, was void, and the sheriff's deed given thereunder could confer no title. L. Sanders, Jr., for Respondent. The Superior Court of San Francisco was made a Court of Record. Wood's Digest, 157, § 83. We say that execution can be issued to any county of the State, by direct statute. Wood's Digest, 195, § 216. The act establishing the Superior Court of San Francisco makes it a Municipal Court, as has been decided by this Court; but the Legislature, in that act, while it gives it a civil jurisdiction in which the amount in controversy exceeds two hundred dollars, exclusive of interest, or which involves the title or pos Hickman v. O'Neal. session of real property situate in the city of San Francisco, etc., extends its power by declaring: "This Court, and the Judges thereof, shall have power to issue all writs necessary and proper to the complete exercise of the powers conferred by this and other statutes, and may send its writs, process, and orders out of the city of San Francisco, in the actions and proceedings in which it has jurisdiction by this act." See Compiled Laws of California, 743, § 34. Now, suppose a party should bring his suit in this Court, having jurisdiction over his person and property, and after service of process, should move just outside of the city, into another county, or elsewhere in the State, and take his property with him, there would be no remedy without multiplicity of action, which the "law abhors," if the views of the appellant are sussustained. But suppose there was a party plaintiff, and a party defendant, resident in San Francisco during the existence of that Court, the defendant having real property out of San Francisco and none in it, he would be without remedy, which is hateful to the law, because the Courts of the counties could not entertain jurisdiction unless by the assertion of a special lien upon the land, which would give jurisdiction. In Ohio, it has been decided in two cases where an execution had been sent out of the limited jurisdiction of the Courts, that the proceedings under them are not nullities or void, but merely voidable. See Green v. Cartwright, Wright's Ohio, 378; Harman v. Gould, Ib., 709; Lyon v. Fish, 20 Ohio, 100; Ib., 105-8. BALDWIN, J., delivered the opinion of the Court-FIELD, J., concurring. The right of a party to enjoin a sale of his property for another's debt is not denied, and is supported by several decisions of this Court. The appellant's defence is, that no sale to the plaintiff, passing the title to the lots, has been shewn; but that the title still remains in Adams & Co. The ground of this claim is, that the Superior Court of San Francisco was a Municipal Court, and had no power to send its process to enforce its judgments beyond the limits of that city. No point is made as to the regularity of the judgment or proceedings under it. In support of this position, the appellant relies upon the case of Meyer v. Kalkmann, (6 Cal. R., 590.,) and that case certainly seems to sustain him. But we do not think that the ruling in that case can be maintained. It is not necessary to consider at any length the questionas to which some difference of opinion has been expressedwhether the act organizing the Superior Court of San Francisco was, in its general provisions, constitutional. This Court has put that question to rest on the doctrine of stare decisis. We think it might have been placed, if thought necessary, upon |