Appeal by the defendants, Joseph H. Cole and George M. Cole, from an order of the Superior Court of the City and County of San Francisco, denying their motion for a change of the place of trial. Edmonds, J.

Action on a bond. The action was commenced September 29, 1877, in the Fifteenth District Court. The complaint is as follows:

The Remington Sewing Machine Company, hereinafter styled plaintiff, complains of Joseph H. Cole, George N. Cole, O. H. Jewell, and A. Showers, defendants herein, and for cause of action alleges:

1. That plaintiff is, and at all the times hereinafter mentioned was, a corporation organized under the laws of the State of Mew York, and is and was engaged in the manufacture and sale of the Remington sewing machines, so called.

2. That on or about the first day of January, A. D. 1875, the defendants, A. Showers, 0. H. Jewell, and George M. Cole, entered into and formed a copartnership under the style of Showers, Jewell & Cole, for the purpose of buying and selling the aforesaid Remington sewing machines in-the State of California and elsewhere.

3. That after the formation of such copartnership the plaintiff entered into an agreement with the said Showers, Jewell & Cole, as partners as aforesaid, whereby the plaintiff agreed among other things to sell to said firm only in the States of California and Oregon its said Remington sewing machines, at certain agreed rates, and upon certain conditions, and the said firm of Showers, Jewell & Cole did agree with the plaintiff among other things to maintain and keep open a store in San Francisco, California, for the sale of said machines, and to pay the plaintiff certain agreed rates for all such machines sold and delivered to them by the plaintiff.

4. That as a condition precedent to the aforesaid agreement between plaintiff and the said firm of Showers, Jewell & Cole, the plaintiff did require and exact from each and every member of said firm a bond in the sum of ten thousand dollars, with good and sufficient surety, and conditioned that if said Showers, Jewell & Cole should from time to time, and at all times, as the same should become due and payable, pay and satisfy all dues, demands, or any balances, which, under their aforesaid agreement, might become due to the plaintiff, or in default thereof, that said member would pay to the plaintiff his one third part or proportion of any such indebtedness, then the obligation to be void, otherwise in full force and effect.

5. That pursuant to such condition the said defendant, George N. Cole, as one of the-said firm of Showers, Jewell & Cole, did, on the tenth day of February, A. D. 1875, make, execute, and deliver to plaintiff his certain bond in the sum of ten thousand dollars, with the defendant, Joseph H. Cole, as surety thereon, and of which the following is a copy, to wit: “Know all men by these presents, that I, George N. Cole, of Stockton, in California, as principal, and Joseph H. Cole, of O’Neal Township, California, as surety, are firmly bound and obliged unto E. Remington & Sons, of Illion, New York, a firm duly established and doing business under said name, in the full and just sum of ten thousand dollars, the which sum, well and truly to be paid to them, said E. Remington & Sons, or the survivor or survivors of them or their assigns, or representatives of them, we jointly and severally bind and oblige ourselves, and our several heirs, representatives, and assigns, firmly by these presents. Sealed with our seals, and dated this tenth day of February, A. D. 1875. The condition of this obligation is such that, whereas, on the first day of January, 1875, the said George N. Cole became an equal copartner with A. Showers and O. H. Jewell in the business of selling and dealing in the sale and disposition of the Remington sewing machines, a machine, the patent of which is owned by E. Remington & Sons, and transacting .said business under the firm name of Showers, Jewell & Cole, which said firm have entered into-an arrangement or agreement to and with said E. Remington & Sons for the supplying of said sewing machines to said firm, for the purpose of sale and the carrying on of their said business. Now, therefore, if the said Showers, Jewell & Cole shall from time to time, and at all times, as the same shall become due and payable, pay and satisfy all dues, demands, or any balances, which, under their said arrangement, agreement, or understanding, as to the terms of dealing, may be or become due, owing, and payable to said E. Remington & Sons for supplies and machines as aforesaid, or in default thereof, the said George N. Cole shall well and truly pay or cause to be paid or settled to the satisfaction of said E. Remington & Sons his one third part or proportion of any such due, indebtedness, or balance, then this obligation shall be void and of no effect, otherwise be and remain in full force and virtue. Sealed with our seals, and delivered in presence of William Graham. George N. Cole, J. H. Cole.”

6. That, by mistake and inadvertence, the name of E. Remington & Sons was inserted in said bond instead of that of the Remington Sewing Machine Company, though the said bond was given, and intended to be given, by said defendants, George N. Cole and J. H. Cole, to said Remington Sewing Machine Company, the plaintiff herein, and was by them to this plaintiff delivered, and the plaintiff accepted the same without noticing said mistake; and the said defendants, George N. Cole and Joseph H. Cole, thereby covenanted with the plaintiff, under their hands and seals, to pay to the plaintiff the sum of ten thousand dollars upon the conditions therein mentioned; that in order to make said bond conform to the actual intentions of the parties thereto, it is necessary that the name of “ E. Remington & Sons,” wherever occurring therein, should be changed to the words “The Remington Sewing Machine Company;” and also the words “of Ilion, New York, a firm duly established and doing business under said name,” after the words “ E. Remington & Sons,” first occurring in said bond, be changed to “of Ilion, New York, a corporation duly established and doing business under said name.”

7. That on or about the-day of May, A. D. 1876, the ,said firm of Showers, Jewell & Cole was dissolved by mutual, consent; and upon a settlement thereafter had by said firm and the members thereof with the plaintiff, it was found that the said firm was indebted to plaintiff in the sum total of nine thousand seven hundred and one dollars and fifty-five cents, of which amount, by the terms and conditions of said bond, the defendant, Joseph H. Cole, became and was liable to pay to plaintiff the full sum of three thousand two hundred and thirty-three dollars and eighty-five cents; that since said settlement the defendants, Showers and Jewell, have paid to plaintiff on account of said indebtedness the sum of six thousand five hundred and eight dollars and thirty-four cents, and there is now owing and unpaid to plaintiff thereon the sum of three thousand one hundred and ninety-three dollars and twenty-one cents. That the defendants, George N. Cole and Joseph H. Cole, have paid no part of said sum of nine thousand seven hundred and one dollars and fifty-five cents, nor has either of them; and there is now owing to plaintiff from said George 1ST. Cole and Joseph H. Cole, on account of said indebtedness and said bond, the sum of three thousand one hundred and ninty-three dollars and twenty-one cents, which became due and payable on August 1,1877. That the plaintiff has demanded payment of said sum of three thousand one hundred and ninety-three dollars and twenty-one cents from each and all of said defendants, but they have each and all neglected and refused to pay the same.

Wherefore plaintiff prays the judgment of this Court: 1. That the bond set forth in count fifth of this complaint herein may be reformed in the particulars set forth in said complaint, and so it may be taken and construed to run to the Remington Sewing Machine Company, the plaintiff' herein. 2. That plaintiff have and recover from the defendants herein the-sum of three thousand one hundred and ninety-three dollars and twenty-one cents, with interest thereon from August 1,1877, at the rate of ten per cent, per annum, and costs of suits, and for such other and further relief herein as the plaintiff may be entitled to.

The defendants Showers and Jewell demurred to the complaint.

The defendants Joseph H. Cole and George 3ST. Cole also demurred, and moved a change of the place of trial, which was denied, August 80,1878, by the District Court. Afterwards the demurrer of the defendants Joseph H. Cole and George 1ST. Cole was overruled, and the action was dismissed by the plaintiff as to the defendants Showers and J ewell. The defendants Joseph H. and George N. Cole thereafter answered the complaint. On the fourteenth day of January, A. D. 1880, the defendants Joseph H. Cole and George 1ST. Cole, without previously asking leave of the Court so to do, made a second motion for change of the place of trial, which was heard and denied by the Superior Court. Both motions were made upon the ground that the defendants Joseph H. Cole and George 1ST. Cole were residents of the County of San Joaquin. A bill of exceptions was filed, and this appeal taken.