Appeal from the Sixth District.

Suit in the usual form upon a promissory note as follows, to wit:

“ Sacramento, June 29th, 1855.

“ For value received, I promise to pay Enoch M. Avery, or order, five hundred dollars on demand, with interest.

“ John W. Avert.”

The note is endorsed thus :

“ Waiving demand and notice, I hereby guarantee the payment of the within note, value received,

“ Boston, Jan. 29th, 1857. Enoch M. Avert.”

There was no service of process upon Enoch M. Avery, and the cause proceeded against'John W. Avery alone. The answer is in substance a general denial of the facts averred in the complaint, with the admission, however, of the execution of the note. It denies that Enoch M. Avery ever indorsed the note to the plaintiffs, and avers that if he did make the writing indorsed thereon, then the same was not an assignment but a guaranty, and was made long after the maturity of the note, and after it had been fully paid to Enoch M. Avery, and without any notice to the defendant. It denies that the plaintiffs are the owners and holders of the note, or that a guaranty, which this indorsement is averred to be, can operate as an assignment of the demand; and further, that such indorsement was made without the privity or consent of the defendant, and as security for the individual indebtedness of Enoch M. Avery to the plaintiffs. It further details that Enoch M. Avery is a resident of the State of Maine, and acting as the agent of defendant in the purchase of goods for the latter, who resides in the city of Sacramento, and that the note in question was sent by the latter-to the former to facilitate his purchases. .Upon the trial the plaintiffs, after putting in evidence the note and indorsement, proved by a witness that they had presented the same to the defendant about two weeks before the commencement of the action, and demanded payment; and that the defendant then admitted that the indorsement was that of his brother, Enoch M. Avery, and that he owed the amount of the note and offered to pay the same, without interest, in thirty, sixty and ninety days. The defendant, under exceptions, then offered in evidence the deposition of Enoch M. Avery, and afterward that of his son Franklin Avery, who testified that he was present at an interview between Mr. Mills and his father, at which the former presented the note in question, when bis father said that he had settled or paid it, but as he did not wish to be sued, he would pay five hundred dollars.

The Court found that defendant, John W. Avery, made the note sued on at Sacramento, California, and transmitted it by mail to his brother Enoch M. Avery, who resided in Maine, to be used by him as security for the purchase of materials for building, such as sashes, door blinds, glass, etc., to be shipped to defendant at Sacramento—he being a lumber dealer in that city; that the note was in due course of mail received by Enoch, who never disposed of it for the purposes for which it was executed, but long after it was due, if it had been lawfully applied, pledged the same to plaintiffs as collateral security for a debt of his own, which pledge was made without notice to defendant; that afterwards, before the institution of this suit, said Enoch settled with plaintiffs and novated the debt for which the note was pledged, and gave new and other security for the payment of that debt, but neglected to obtain possession of the note. As a conclusion of law, the Court found that the pledge of the note was without authority, and that by the novation aforesaid, the note was freed from all effects of the pledge, and that plaintiffs lost all interest in it; and that as Enoch M. Avery never appropriated the note as it was intended he should, he never had any right to it, and that it belongs to defendant.

Judgment for defendant, plaintiffs appeal.