Law of the Case.—A decision on appeal, based upon a particular state of facts, is not binding in respect to questions arising on a second appeal, and depending for their solution upon facts essentially different.

Mobtoage Poreolosure—Pleading—Cross-Complaint—Demurrer. — On the 1st of July, 1864, T. W. Sigourney brought an action to foreclose a mortgage against the property of a corporation known as the Eureka Lake Company. Marks Zellerbach and certain other persons, alleged to be subsequent encumbrancers, were made defendants. Zellerbach afterwards succeeded to the rights of the company, and was the only one of the original defendants who appeared in the action. On the 23d of August, 1863, Sigourney and Zellerbach made the agreement referred to in the opinion of the court The Eureka Lake and Yuba Canal Company Consolidated was organized in pursuance of that agreement, and intervened in the action, which was then tried, and resulted in the recovery of a judgment by Sigourney. This judgment was reversed on appeal, and before any other proceedings were taken Sigourney died, and his administrator was substituted as plaintiff. A supplemental complaint was afterwards filed, sotting up the agreement, alleging its non-performance by Zellerbach, and making the Eureka Lake and Yuba Canal Company Consolidated a defendant. Zellerbach answered, and the Eureka Lake and Yuba Canal Company Consolidated withdrew its intervention, and filed an answer, and also a cross-complaint claiming affirmative relief against Zellerbach and the plaintiff. Zellerbach demurred to the cross-complaint, and the demurrer was sustained. The action was again tried, and from the judgment rendí red, separate appeals were taken by Zeller bach and the Eureka Lake and Yuba Canal Company Consolidated. After an extended examination oí the case as presented by the two appeals, held, that the demurrer was improperly sustained, and that the court below proceeded on an erroneous view of the rights of the parties.