hundred dollars, which the two Blacks and Waldrip had signed as joint makers in favor of one Logsdon, or order, due three months after its date, and bearing interest at one per cent per month until paid.

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The complaint alleges although Waldrip was parent maker, that he was in fact a mere surety for the Blacks, and after the note became due, the Blacks having suffered it to remain unpaid except the sum of nine dollars, that Waldrip paid to Logsdon, the payee, the full amount due upon the note, and had it indorsed to himself, and that the mortgage was given to secure him in the reimbursement for such a payment, if he should be obliged to make it.

That pleading also contained a copy of the note and mortgage upon which the suit was brought, but the answer of Julia A. Black thereto was not verified, hence the genuineness and due execution of those instruments were admitted. (Code Civ. Proc., sec. 447.)

The language of the mortgage, as set out in the complaint, although not as definite as might be desired, is sufficient to show, in the absence of any proof to the contrary, that the rote was signed by Waldrip as a surety merely, and no demurrer having been filed pointing out any special defects of the complaint, the judgment should not be reversed for the want of a suffi cient allegation of the plaintiff's suretyship. (Chase v. Evoy, 58 Cal. 349.)

The genuineness of the mortgage is not controverted, and its recitals are to be held as true. (Code Civ. Proc., sec. 1962, subd. 2.)

It is clear, therefore, that the plaintiff signed the note as surety only, and that the mortgage was executed to save him harmless, and to reimburse him for any payment for and on account of the note he might be compelled to make.

The indorsement upon the note to the effect that it was indorsed by the payee Logsdon to Waldrip for value

received, together with its possession by Waldrip, and all the other circumstances surrounding the transaction, at least entitled the court to presume, there being no evidence to the contrary, that Waldrip, the surety, had paid the apparent value of the note to Logsdon, and was the owner of it. This being so, the Blacks, for whom he had become surety, were bound to reimburse Waldrip for what he had been obliged to pay on account of their failure to pay the note, as they promised to do. Having never been in reality, as to the Blacks, a maker of the note, but a mere surety, upon his being compelled to make payment to Logsdon of what was due upon it, he became the equitable assignee of the note, it being the principal undertaking, and entitled to enforce its payment according to its tenor and effect, as the holder thereof, as well as to foreclose the mortgage, which was the collateral security. (3 Pomeroy's Eq. Jur., sec. 1419, note 1; Cottrel's Appeal, 23 Pa. St. 294; Lidderdale v. Robinson, 2 Brock. 159.) Chief Justice Marshall, in the case last mentioned, tersely, yet most forcibly, says: "When a person has paid money for which others were responsible, the equitable claim which such which such payment gives him on those who were so responsible shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted, to every equitable extent and purpose, in the place of the creditor whose claim he has discharged." (See also Ellsworth v. Lockwood, 42 N. Y. 93, middle of page, and numerous cases there cited.)

We are of opinion that the mortgage sought to be foreclosed was not void for uncertainty.

But it does not necessarily follow, from the proposition of law just cited as authority, that the person who has paid his money for which others are responsible should in this case, although "clothed with the legal garb with which the contract he has discharged was invested," be allowed to be reimbursed to any greater

extent than the amount, principal and interest, he has been obliged to pay out, together with legal interest upon the gross sum so paid out from the date of its payment. In other words, it does not follow, in this case, that because the surety can recover, according to the terms of the note, the principal and interest he actually paid out, that he can also recover, from and after the time of his payment of that sum, one per cent per month interest as provided in the note; he is simply entitled to recover the legal rate of interest upon the whole sum of money he has paid out from the date of that payment.

It would appear, therefore, that the judgment should be so modified as that it be reduced by the sum of $17.13, which is the excess of interest allowed by the court over and above what was legally due on the thirty-first day of December, 1886, the date of the rendition of that judgment. In all other respects the judgment and order should be affirmed.

HAYNE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, let the judgment be modified as above indicated, and as modified, the judgment and order are affirmed.

[No. 12282. In Bank.- December 23, 1887.]

L. J. WELCH, PETITIONER, v. FLEET F. STROTHER, AUDITOR OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT.

DEPUTY COUNTY CLERKS-SALARIES OF SAN FRANCISCO-ONE-TWELFTH ACT.- The act of February 27, 1878,— providing that neither the board of supervisors of the city and county of San Francisco, nor any other officer having the power "to authorize or contract liabilities against the treasury," shall authorize or contract for, in any one month, ary demand against the treasury which shall exceed one twelfth part of the amount allowed by law. . . . to be expended within the fiscal year of which said month is a part,- does not apply to

the auditing and payment of demands for salaries of officers, such as deputy county clerks, whose appointments are provided for and salaries fixed by law.

ID. CONSTITUTIONAL LAW AMOUNT LIMITED FOR SALARIES BY SUPERVISORS.- Section 18 of article 11 of the constitution, providing that "no county. . . . shall incur any indebtedness, in any manner or for any purpose, exceeding in any year the income and revenue provided for it for such year," does not prohibit the auditor of the city and county of San Francisco from auditing the demands for salaries of deputy county clerks, notwithstanding the aggregate amount of the salaries of such officers for a given year would exceed the amount limited by the board of supervisors for the payment of such salaries during that year.

APPLICATION for a writ of mandate. The facts are stated in the opinion of the court.

McAllister & Bergin, for Petitioner.

The so-called one-twelfth act is not applicable to the demands in question. (Cashin v. Dunn, 58 Cal. 581; Consolidation Act, sec. 95, subd. 3; sec. 96; Burke v. Edgar, 67 Cal. 183.) Where the statute fixes the salary, the appointing officer cannot, nor can any department of the government except the legislature, vary or change the amount thus fixed. (People v. Board of Police, 75 N. Y. 42; Kehn v. State, 93 N. Y. 294; State v. Steeler, 57 Tex. 200; Mitchell v. United States, 18 Ct. of Cl. 281; Adams v. United States, 20 Ct. of Cl. 281; Dyer v. United States, 20 Ct. of Cl. 166.) Nor does the omission to make the necessary appropriation to pay the salary effect its amount. (United States v. Langston, 118 U. S. 394; United States v. Williamson, 23 Wall. 416; State v. Purdy, 36 Wis. 224; 17 Am. Rep. 485.) A salary of a municipal officer is not a debt within the meaning of section 18 of article 11 of the constitution. (Harvey v.

Comm'rs, 32 Kan. 162; Butler v. Pennsylvania, 10 How. 415; Commonwealth v. Bailey, 81 Ky. 401; Collector v. Day, 11 Wall. 122; Bliss v. Lawrence, 58 N. Y. 446; 17 Am. Rep. 273; Bangs v. Dunn, 66 Cal. 73; Hall v. Wisconsin, 103 U. S. 8; State v. Police Jury, 34 La. Ann. 45; Bulkley v. Eckert, 3 Pa. St. 369; 45 Am. Dec. 650; Clark

v. Clark, 62 Me. 256; Bivens v. Harper, 59 Ill. 22; Fitzsimmons v. Brooklyn, 102 N. Y. 538; 55 Am. Rep. 835.)

Samuel W. Wilson, and George Flournoy, Jr., for Respondent.

Section 18 of article 11 of the constitution prohibits the auditing or payment of the demands in question. (San Francisco Gas Co. v. Brickwedel, 62 Cal. 642.)

MCFARLAND, J.-During the month of July, 1887, the petitioner was a regularly appointed and acting deputy county clerk of the city and county of San Francisco, being register clerk of department 4 of the superior court of said city and county. His salary was fixed by law at $175 per month. In August, 1887, he presented his demand for his salary for the preceding month of July to the respondent, who was and is the auditor of said city and county, and he refused to audit the same. Petitioner then commenced this proceding in mandamus in this court to compel the respondent to audit said demand.

The refusal of the respondent seems to have been based mainly upon these grounds:

The board of supervisors passed an order fixing the estimate of expenses for "county clerk's deputies and copyists' salaries," for the year at seventy-two thousand dollars, and providing that such expense should be limited to that amount. And by an act of the legislature relating to said city and county, passed February 27, 1878,-usually called the one-twelfth act,-it was enacted that neither the board of supervisors, nor any other officer having the power "to authorize or contract liabilities against the treasury," shall authorize, contract for, pay, etc., in any one month, any demand or demands against the treasury, or any of the funds thereof, which shall exceed one-twelfth part of the amount allowed by laws existing at the time of such contract