Sayre

This cause was originally decided by the court in Department, and a rehearing having been granted, it is now before the court in Bank.

It was an action on a promissory note executed by defendant’s testator to the plaintiff. It was given to secure the payment of the note of the Pioneer Gold Mining Company to the plaintiff for one hundred and ten thousand dollars. This last note was indorsed by William S. Chapman. It was further secured by a mortgage on the Pioneer mine, executed by said company.

The above facts appear, and are not disputed. It further appears that there was a prior mortgage executed by the company on the Pioneer mine, on which a suit *208 for foreclosure was brought, and in this suit the plaintiff, who was one of the defendants therein, filed a cross-complaint, asking that his mortgage be foreclosed. This was done, and an order of sale issued directing the proceeds of the sale of the mine under the decree, to be applied, first, to the payment of the prior mortgage, and the remainder upon the plaintiff’s mortgage. The sheriff’s return of sale showed a deficiency due on the second debt to plaintiff, amounting to $61,534.13. Judgment for this deficiency was docketed…