Staude

This action is brought by plaintiff against the defendants as sureties on a forfeited undertaking of bail. The answer contains no denial of any of the material allegations of the complaint, but sets up two so-called separate defenses, which are, in substance, as follows: —

“1. That the woman whose release was procured by the execution of the undertaking herein was, previous thereto, tried by a jury for the crime of grand larceny, and they, having failed to agree upon a verdict, were discharged from the further consideration of the case; that by reason of such disagreement and the insufficiency of the evidence adduced at the trial, all apprehension or fear on the part of defendants that she would be convicted upon another trial of the case were entirely removed, in consequence of which, and without any knowledge on their part of the pendency of any other charge against her, and having been led by the acts of plaintiff, its officers and agents, to believe there was none, they executed the undertaking herein; that there was, at the time *562 of the execution of said undertaking, another charge pending against her in the police court of San Francisco for larceny, which fact, though…