Mahan

This is an action to recover the amount of principal and interest alleged to be due on a promissory note executed by the defendant to the plaintiff on March 19,1869. The defense is failure of consideration.

This is the third appeal in the case. On the first trial the plaintiff had judgment, and the defendant *13 appealed. It was held by this court that the defense was established by-the facts shown, and the judgment was accordingly reversed and the cause remanded for a new trial. (Mahan v. Wood, 44 Cal. 462 .)

On the second trial the defendant had judgment, and the plaintiff moved for a new trial. His motion was granted, and the defendant appealed from the order.

The appellant contended that the facts were substantially the same as on the former appeal, and for that reason the court below was bound, as a matter of law, to refuse a new trial. It was said by this court: “There is no doubt that where the facts are the same as on a former appeal the principles and rules announced by the court will be recognized on a subsequent appeal as the law of the case. And if the case were before us now on appeal from the last judgment of the court below, which was in favor of the defendant,…