Haber

Action to foreclose a mortgage executed by defendant, Brown, upon certain lots of land situate in the city of San Diego, to secure her promissory note for four thousand dollars, dated “San Diego, California, September 10,1887,” and payable one year after date to the order of Caroline G. Carter, the appellant. The note contained a provision for the payment of counsel fees of five per cent on the amount recovered in case of suit.

The complaint contains two counts. The first alleges the indorsement of the note before maturity by Caroline G-. Carter to the order of Dinkelspiel & Co., a firm consisting of Dinkelspiel, Joseph i, and plaintiff, and a subsequent assignment by Dinkelspiel and Joseph! of all their interest in note to the plaintiff, and avers, “ that, at the maturity of said note, due search and inquiry were made for the maker thereof, the said Martha L. Brown, at the city of San Diego, in order that the same might be presented to lier for payment, but she could not be found, and the said note was not paid.” That thereupon the said note was duly protested for nonpayment, and notice of protest and nonpayment was given to said Caroline G. Carter.

The second count omits the…