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5. It is urged that instruction 28, given for the people, is an invasion of the province of the jury, and especially so because defendant was a witness in his own behalf. In this instruction the jury were told that they were the exclusive judges of the evidence and of the credibility of the witnesses and of the weight to be given to their testimony; and the court then proceeded to point out that as such judges of the evidence they "may consider the character and appearance of the witnesses, the consistency and reasonableness of their statements; the interest, if any, they may feel in the case, and from these and such reasons may judge and determine as to the credibility, weight, effect, and sufficiency of such testimony." We perceive no invasion of the prerogative of the jury, as judges of the evidence, in this instruction. It does not fall within the rule in People v. Van Ewan, 111 Cal. 144, [43 Pac. 520], where the instruction was held error because pointing to the testimony of a particular witness. A similar instruction is found in People v. Iams, 57 Cal. 115, at pp. 122, 123, and although not specifically pointed out for approval, was included in the charge of the court, which, after careful examination, was said to have been "entirely correct."

The following instruction was given for the people: "If you entertain a reasonable doubt upon any one single material fact which is inconsistent with the defendant's guilt and arises from the evidence in this case, it is your duty to give the benefit of such doubt to the defendant and acquit him."

The criticism of this instruction is, that it dealt only with facts which are inconsistent with guilt, but does not include facts which are consistent with guilt, and is therefore erroneous and misleading. The court had just before instructed the jury fully as to the doctrine of reasonable doubt, and the court said, among other things: "The law presumes every man to be innocent until his guilt is established beyond all reasonable doubt, and this presumption attaches at every stage of the case, and to every fact essential to a conviction." Elsewhere, at defendant's request, the court charged the jury: "If the jury entertain any reasonable doubt upon any single fact or element necessary to constitute the crime, it is your duty to give the defendant the benefit of such doubt and acquit." We cannot see that there was any failure of the

court to fully instruct the jury upon the point now presented; and it is quite apparent that the jury could not have been misled by the particular instruction complained of. Some other instructions are subjected to adverse comment by appellant, but they do not seem to us to call for particular notice. The judgment is affirmed.

Buckles, J., and McLaughlin, J., concurred.

A petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on September 1, 1905.

[No. 32. Third Appellate District. July 3, 1905.]

G. W. CRYSTAL, Appellant, v. MRS. C. A. HUTTON, Respondent.

JOINT NOTE-PAYMENT BY SURETY OBLIGATION EXTINGUISHED REMEDY AGAINST PRINCIPAL STATUTE OF LIMITATIONS.-In this state one who signs a joint note as co-maker, but designating himself as surety, and who pays the note, thereby extinguishes its obliga. tion, and his sole remedy against the principal maker is upon the implied obligation of the principal to reimburse him, which is barred in two years after such payment.

ID.-IMPROPER ACTION UPON NOTE-ASSIGNMENT BY HOLDER-PLEADING OWNERSHIP CONCLUSION OF LAW-DEMURRER-The surety in such case cannot maintain an action upon the note by taking an assignment thereof from the holder after its extinguishment by payment; and a complaint by the surety on the note setting forth the facts shows on its face that the note is functus officio. The averment of ownership of the note is of a conclusion of law, and a demurrer to the complaint was properly sustained.

APPEAL from a judgment of the Superior Court of Solano County. A. J. Buckles, Judge.

The facts are stated in the opinion of the court.

Horace G. Perry, and E. E. McFarland, for Appellant.

The surety was entitled to take an assignment of the obligation and hold it against the principal. (Civ. Code, sec.

2848; Hayes v. Ward, 4 Johns. Ch. 123, 8 Am. Dec. 531; Clason v. Morris, 10 Johns. 524; New York State Bank v. Fletcher, 5 Wend. 85; Bullock v. Boyd, 1 Hoff. Ch. 294; Van Horne v. Everson, 13 Barb. 526; Goodyear v. Watson, 14 Barb. 481; Cuyler v. Ensworth, 6 Paige, 32; Edson v. Dillaye, 17 N. Y. 158; Fairchild v. Lynch, 99 N. Y. 359, 2 N. E. 20; Tutt v. Thornton, 57 Tex. 35; Waldrip v. Black, 74 Cal. 409, 16 Pac. 226; Williams v. Riehl, 127 Cal. 369, 59 Pac. 762; Lidderdale v. Robinson, 2 Brock. 159, Fed. Cas. No. 8337; Cottrell's Appeal, 23 Pa. St. 294; Brandt on Suretyship, sec. 274; 3 Pomeroy's Equity Jurisprudence, sec. 1419, note 1; Story's Equity Jurisprudence, sec. 500.)

Coghlan, Harvey & Goodman, for Respondent.

Whatever the law may be elsewhere, in this state it is settled that the only remedy of the surety paying a just note is upon the implied obligation of the principal, which is barred in two years. (Civ. Code, sec. 1473; Code Civ. Proc., sec. 339; Yule v. Bishop, 133 Cal. 578, 579, 65 Pac. 1094, and cases therein cited.)

CHIPMAN, P. J.-Action by a surety against the principal on a promissory note.

Defendant pleaded, by demurrer, subdivision 1 of section 339 of the Code of Civil Procedure in bar of the action. The complaint was filed March 11, 1903. The demurrer was sustained, and plaintiff declining to amend his complaint, judgment passed for defendant, from which plaintiff appeals.

The complaint alleges that defendant, Mrs. Hutton, made her certain promissory note, which is set forth in haec verba. The note is dated March 12, 1898, and is payable to the order of H. C. Deakin twelve months after date, with interest at ten per cent, payable annually, and to be compounded, and is signed as follows: "Mrs. C. A. Hutton. G. W. Crystal, Surety.' It is alleged in the complaint that on March 17, 1898, the note was duly indorsed to Mrs. C. Deakin; that plaintiff, at request of defendant, signed said note as surety and had no interest therein; that defendant refused and neglected to pay said note and interest when the same fell due, and plaintiff, as surety, was compelled to pay the same, and did pay, to Mrs. C. Deakin thereon the sum of $2,360.10

on March 30, 1900, and "that thereupon, on said day, said Mrs. C. Deakin indorsed, assigned, and delivered said note to this plaintiff, and plaintiff ever since has been and now is the legal owner and holder thereof"; that no part of said sum of $2,360.10 has been paid, and the whole thereof is due and unpaid. The prayer of the complaint is for the sum of $2,360.10, with interest thereon from March 30, 1900, at the rate of ten per cent per annum, compounded annually.

1. It is contended by appellant that the action is founded upon a written instrument,-namely, the promissory note set out in the complaint, and may be brought at any time within four years from its maturity. Respondent's contention is, that when the surety paid the original obligation,namely, the promissory note, it became extinguished, and no action could be maintained upon it, and that the action of the surety in such case is upon an implied promise of the principal to reimburse the surety, and is not an obligation in writing, and was therefore barred in two years from the time the surety paid the note.

Appellant relies upon the provisions of sections 2848 and 2849 of the Civil Code, which gives to a surety, upon satisfying the obligation of the principal, the right "to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended," etc. He also contends that section 1473 of the Civil Code, which provides that "Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it," does not apply to sureties. It is urged that effect must be given to section 2849, in considering these two sections together, because this section is a special law, while section 1473 is a general law, and the latter must give way to the former.

Appellant's attorneys appear to have made a very careful study of the history of these provisions of the code, tracing their origin to the New York code, and they show by decisions of the courts of that state that apparently the construction contended for by appellant is there held to be the correct one, and that the rule of law respecting the rights of a surety is as appellant urges should be the rule here. Cases are also cited from other states holding in consonance with the rule said to

be enforced in the New York courts. Two cases from our own supreme court are cited as supporting appellant,-namely. Waldrip v. Black, 74 Cal. 409, [16 Pac. 226], and Williams v. Riehl, 127 Cal. 365, [78 Am. St. Rep. 60, 59 Pac. 762]. If the question were res integra in this state, we should feel called upon to give it a searching examination, for the courts have differed widely and are far from agreement upon it. However the question may be regarded elsewhere, we think the rule firmly settled in this state that payment by the surety of the obligation evidenced by a promissory note under the circumstances shown in the complaint extinguishes the obligation, and that the remedy given the surety in such case is upon the implied obligation of the principal debtor to reimburse the surety "what he has expended." The cases which more or less sustain this rule are the following: Chipman v. Merrill, 20 Cal. 131; Gordon v. Wansey, 21 Cal. 77; Moran v. Abbey, 58 Cal. 163; Wright v. Mix, 76 Cal. 465 [18 Pac. 645]; Stone v. Hammell 83 Cal. 547, [17 Am. St. Rep. 272, 23 Pac. 703]; James v. Yaeger, 86 Cal. 184, [24 Pac. 1005]; Stanley v. McElrath, 86 Cal. 449, [24 Pac. 16]; Pleasant v. Samuels, 114 Cal. 34, [45 Pac. 998]; Yule v. Bishop, 133 Cal. 574, [65 Pac. 1094]; Loewenthal v. Coonan, 135 Cal. 381, [87 Am. St. Rep. 115, 67 Pac. 324]. The question had careful consideration in Yule v. Bishop, as indeed in other cases above cited, and after reviewing the cases it was there said: "In this state, therefore, it seems to be well settled, both by the language of the code and by the decisions of this court under it, that full payment and performance by the surety extinguishes the primary obligation; that new rights and liabilities then arise upon the part of the principal, to reimburse the sureties for the moneys expended, with legal interest, though not according to the terms of the primary obligation; and upon the part of the surety, the right to an action in assumpsit upon the implied promise of the principal to make him whole. Since the principal obligation is thus extinguished, it cannot be with us as it may be elsewhere, that the original obligation is kept alive and passes to the surety by equitable assignment or subrogation."

This case was reconsidered on petition and the Department decision was approved. There is nothing in the dissenting opinion of Mr. Justice Harrison which necessarily contra