the writ of habeas corpus. (Pen. Code, sec. 1505; Muldoon v. Lynch, 66 Cal. 539; Jahns v. Nolting, 29 Cal. 513.) Such an action must be tried in the county where the cause of action arose. (Code Civ. Proc., sec. 393.)

HAYNE, C.-Appeal from an order refusing a change of venue. The complaint avers in substance that the plaintiff was unlawfully confined and restrained of his liberty by the defendant at Nevada township, Nevada County, California; that a writ of habeas corpus was duly issued to the defendant by the superior, court of Nevada County, commanding him to produce the body of the plaintiff at a specified time and place; that said writ was served upon the defendant while he had the plaintiff in his custody and under his control, but that defendant refused and still refuses to obey the said writ; and that "by reason of the aforesaid acts and doings of said defendant, plaintiff has been unlawfully imprisoned and restrained of his liberty by the defendant for the period of five days, and has suffered damages and injury in the sum of five thousand dollars." The prayer was for judgment for that sum, and costs. The motion was for change of venue to Sutter County, on the ground that that was the residence of the defendant.

If the action is to be regarded as an action for false imprisonment, the defendant was entitled to have the case sent to Sutter County. If, however, it is to be regarded as an action for the recovery of a statutory penalty under section 1505 of the Penal Code, which provides, in relation to writs of habeas corpus, that "if the officer or person to whom such writ may be directed refuse obedience to the command thereof, he shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars, to be recovered by an action in any court of competent jurisdiction," then the retention of the case in Nevada County was proper, under section 393 of the Code of Civil Procedure, which provides that actions "for the recovery of a penalty

or forfeiture imposed by statute" must be tried in the county where the cause of action or some part thereof arose, subject to the power of the court to change the place of trial in proper cases.

We think that the complaint states a good cause of action for false imprisonment. The allegation that the plaintiff was "confined and restrained of his liberty by the defendant" is an allegation of physical and bodily restraint, which would serve as a foundation for the old action of trespass vi et armis. In such an action it is not necessary to aver as would be necessary in an action for malicious prosecution-that the imprisonment was malicious or without probable cause. (Colter v. Lower, 35 Ind. 286; 9 Am. Rep. 735; Carey v. Sheets, 60 Ind. 20, 21; Akin v. Newell, 32 Ark. 605.) It is not even necessary to allege that the imprisonment was unlawful (though that is alleged here). If matter of justification exists, it must be pleaded by the defendant. "Whoever assaults or imprisons another (except in some cases under particular ) must justify himself by showing specially to the court that the act was lawful." (1 Chitty on Pleadings, 16th Am. ed., *535; Gallimore v. Ammerman, 39 Ind. 318; Carey v. Sheets, 60 Ind. 20, 21; People v. McGrew, 77 Cal. 570. We do not regard the expressions in the opinion in Hirsch v. Rand, 39 Cal. 318, as intended to assert a different rule. The allegation of imprisonment, coupled with the averment of damage quoted, constitutes a cause of action for false imprisonment.

statutes

And we are inclined to doubt whether the complaint can be regarded as stating a cause of action for a penalty, under section 1505 of the Penal Code, for the reason that the complaint makes no reference to that section, or indicates in any way that it is for the violation of a statute. But assuming that it can be so regarded, it is evident that it was framed with a double aspect. In one aspect it is a

good complaint for false imprisonment; in another aspect it may be assumed to be a good complaint for a penalty imposed by statute. Now, we do not think that the plaintiff, by so framing his complaint, can deprive the defendant of his right to have the case tried in the county of his residence. The rule is, that ambiguities must be resolved against the pleader; and we think that this is a proper case for its application.

Even if the complaint be regarded as stating two separate causes of action, upon one of which the defendant would be entitled to a change of venue, but not upon the other, the result would be the same. It is the plaintiff's own doing if the complaint be so drawn. He cannot deprive the defendant of his right to a change of venue by the addition of something to the complaint. If this were not the rule, it would be very easy for a plaintiff to defeat、 the defendant's right in the matter. All that plaintiff would have to do would be to add another cause of action to his complaint. It need not be a genuine cause of action. And it would not matter whether the two causes of action were properly united or not. For the defendant could not compel their separation by demurrer before moving for a change of venue, because he is required to take his proceedings for such change at the time of answering or demurring. (Code Civ. Proc., sec. 396.) And the "right is to be determined by the condition of things existing at the time the parties claiming it first appeared in the action." (Remington S. M. Co. v. Cole, 62 Cal. 318; Buell v. Dodge, 57 Cal. 645.) And even if this were not so, and the court had power to postpone the hearing of the motion until after the hearing of the demurrer, it would deprive the defendant of his right to have the demurrer heard in the county of his residence. (Heald v. Hendy, 65 Cal.

321.)

In any view that can be taken, therefore, the order re

LXXIX. CAL.-3

fusing a change of venue was erroneous. tions do not require special notice.

The other posi

We therefore advise that the order appealed from be reversed, with directions to the court below to make an order transferring the case to Sutter County.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the order appealed from is reversed, with direc tions to the court below to make an order transferring the case to Sutter County.

The complaint

MCFARLAND, J., disenting.-I dissent. either states a cause of action under the provisions of the code about habeas corpus, or it states no cause of action at all. There is no averment of any liability of defendant under the original arrest. The averred liability is upon his refusal to obey the writ of habeas corpus. I think, therefore, that the motion for a change of venue was properly denied.

THORNTON, J., dissented.

[No. 12803. In Bank.-April 23, 1889.]

PETER BAKER ET AL., RESPONDENTS, v. THE FIREMAN'S FUND INSURANCE COMPANY, AND CHRISTOPHER R. BROWNE, INTERVENOR, APPEL

LANTS.

MORTGAGE-DEed and DefeaSANCE-TENDER.-When a third person advances money to mortgagors to redeem land from a foreclosure sale by a mortgagee, and in consideration thereof receives a deed absolute in form from the mortgagors, and enters into a simultaneous agreement, under which the latter agree to purchase the land for a sum equal to the amount paid for redemption, the expenses of preparing the instruments, the premiums on policies of insurance, and an additional sum as compensation to the party advancing the money, and it is stipulated that time shall be of the essence of the

contract, and that upon failure to fulfill the agreement of purchase, the grantee of the deed "shall be released from all obligations to convey said property, and shall be entitled to immediate possession of the same, said parties of the second part shall forfeit all rights thereto, and said parties of the first part shall be entitled to a strict foreclosure of this contract," but there is no agreement that in any contingency the parties of the second part are to be released from their obligation to pay, held, that the transaction is a mortgage. 1D.-PAROL EVIDENCE.-Parol evidence is admissible to show that a deed

and agreement of repurchase were intended as a mortgage, although as matter of law they constitute a mortgage upon the face of the papers.

ID. REGISTRY OF DEED AND DEFEASANCE-NOTICE OF MORTGAGE.When a deed and defeasance thereof are recorded, and together constitute a mortgage by legal construction, any subsequent grantee of the property is conclusively presumed to have had notice of the real nature of the transaction, and is put upon inquiry as to whether the mortgage was or was not paid in whole or in part. ID. TENDER BY MORTGAGOR OF BALANCE DUE-STIPULATION AS TO TIME. When a deed and defeasance together constitute a mortgage, a failure to tender enough money to pay the debt in time will not divest the mortgagor's title to the land, though the defeasance provides that time shall be of the essence, and that all rights of the mortgagor shall be forfeited upon his failure to comply with its terms. ID.-ACTION TO REDEEM-CLOUD ON TITLE-CONDITIONS OF RELIEF ACCOUNTING.-An action to redeem from a deed absolute in form, which was intended as a mortgage, is in effect merely an action to remove a cloud from the title. Such action may be brought at any time while the mortgagor is in possession of the land, upon condition of payment of what is due upon the mortgage; and upon the question of what is due, the mortgagors are entitled to a credit of whatever sums were realized by the mortgagee from insurance or from crops, and to be charged with taxes paid by the mortgagee, and all sums due under the terms of the contract. ID.-INSURANCE BY MORTGAGEE-CREDIT ON MORTGAGE.-If it was agreed orally between a mortgagor and mortgagee, by deed absolute in form, accompanied by a written defeasance, that any insurance money received by the mortgagee should be credited upon the amount due, such money when received operates as a payment upon the mortgage debt pro tanto.

ID. VOLUNTARY PAYMENT OF INSURANCE TO MORTGAGEE-REPRESENTATION OF OWNERSHIP ESTOPPEL.-If a fire insurance company insures property in the name of a mortgagee, who represents himself to be the owner, and voluntarily pays the loss to him, with notice of the facts concerning the ownership, it is estopped from claiming the benefit of a forfeiture clause for untrue misrepresentation on that point, and it is immaterial whether the assured was owner or only a mortgagee.

ID. EVIDENCE OF PAYMENT OF INSURANCE MONEY-TRANSFER BY MORTGAGEE TO INSURANCE COMPANY.-When a mortgagee under a deed absolute in form, accompanied by a written defeasance, insures the buildings as owner, and the adjuster of the company refuses to make payment because the mortgagor is in possession, but the matter is