Heath that they were solvent at the time he offered to pay the bank, but that on the twenty-fifth day of August, 1893, they, and each of them, became insolvent, and have continuously since been insolvent; which offered evidence the court excluded, upon the ground that it was irrelevant, incompetent, and immaterial, to which ruling defendant Braly duly excepted.

And, as conclusions of law, the court found that the effect of the offer to pay, on May 11th, was to stop the running of interest and to release said defendant Braly from the obligation to pay attorneys' fees, but that he was not released from his obligation to pay the note, and that plaintiff was entitled to judgment against the three defendants for the principal due on the note, with interest thereon to May 11, 1893, amounting to one thousand and sixty-eight dollars and twenty-five cents.

Judgment was accordingly so entered, from which the defendant Braly appeals on the judgment-roll alone.

The Civil Code, section 2831, declares a surety to be "one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor."

In Montgomery v. Sayre, 91 Cal. 206, the action was upon a promissory note given as collateral security under circumstances similar to those found here, and it was held that the maker of the note was, in law, a surety.

The note in suit was executed to be used as collateral security for the payment of Stewart's note, and was accepted and held by the bank as such collateral security. 35 The appellant must, therefore, be regarded as only a surety, and the question is, Was he exonerated from liability on the note by the refusal of the bank to accept payment thereof, because it would result in a suit against the comakers, and "they had concluded to hold the note, and make it out of the other parties?"

"A surety is exonerated: 1. In like manner with a guarantor; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety, or inconsistent with his rights, or which lessens his security; or 3. To the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do": Civ. Code, sec. 2840.

In Hayes v. Josephi, 26 Cal. 535, the action was to recover from a surety on an undertaking, given for the release of an attachment, the amount of the judgment subsequently recovered.

The defense was, that subsequent to the recovery of the judg ment, the surety tendered to the creditor the full amount of the judgment, and he refused to receive it, and that at that time the judgment debtor was solvent, but afterward, and before the commencement of the action, became, and ever since had been, wholly insolvent.

At the trial, the court refused to admit evidence in support of the allegations of the answer, and gave judgment for the plaintiff on the pleadings. On appeal, it was held that the offered evidence should have been admitted, and that, if the facts alleged were established, the surety was discharged from his obligation on the undertaking. In the opinion of the court rendered by Sawyer, J., it is said: "The law requires the creditor to act in the utmost good faith toward the surety, and will not permit him to do anything that will unnecessarily tend to prejudice his interests. The creditor will certainly not be permitted to place obstacles in the way of the surety, which tend to hinder him in the pursuit of such remedies as are guaranteed to him by the law. The surety is entitled to pay the debt, and thereby at once 36 acquire the right to proceed against the principal. . . . . If it is the legal right of the surety to pay the debt, and at once proceed against the principal debtor, it necessarily follows that he is entitled to have the money accepted by the creditor in order that he may proceed. It is the duty of the creditor to receive it, and a gross violation of duty and good faith on his part to refuse, thereby interposing an insurmountable obstacle in the way of the pursuit by the surety of his most prompt and efficient remedy. . . . . If the creditor refuses to receive the money when tendered, he as effectually prevents the surety from promptly pursuing his most efficient remedy as he would by entering into a valid contract with the debtor to extend the time of payment. The reason why a valid contract between the creditor and principal to extend the time of payment discharges the surety is, as we have seen, because the creditor, by his further contract, places an obstacle in the way of prompt and efficient action on the part of the surety to protect his interest. The principle applies here with equal force."

The plaintiff

In Sharp v. Miller, 57 Cal. 415, this court said: "refused to accept the money which was offered. Having tendered the money, the defendants, as sureties, did all they contracted to do. The tender made, although it was refused, was equivalent to a payment by them: Solomon v. Reese, 34 Cal. 28, 36. And by it they were discharged from their obligation as

sureties upon the appeal bond: Hayes v. Josephi, 26 Cal. 535." The note in suit was held by the bank as collateral security, and appellant was liable thereon as principal for one-third, which he paid, and as cosurety with Morse for one-third, and as cosurety with Heath for one-third: Chipman v. Morrill, 20 Cal. 136. He had a right to pay the balance due on the note, and to look to his comakers for their pro rata shares thereof. The bank refused to accept the money because it did not want the comakers sued. But this the bank had no right to do, 87 and, as said in Hayes v. Josephi, 26 Cal. 535, the refusal was a gross violation of duty and good faith on its part.

It is objected, however, that it does not appear that appellant was prejudiced by the refusal, since there is nothing to show that Morse and Heath subsequently became insolvent, the finding to the effect that appellant offered to prove their solvency and subsequent insolvency, which evidence was excluded, having no place in the record.

It is true that findings should be of the ultimate facts, but this finding cannot be disregarded on the ground urged. It is found in the record, and, so far as appears, was made and accepted without objection on either side. It must be assumed, therefore, for the purposes of this appeal, that the facts were as appellant offered to prove them to be.

It is further objected that appellant was not discharged from liability on the note, because he did not comply with the provisions of section 1500 of the Civil Code, which reads as follows: "An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor with some bank of deposit within this state of good repute, and notice thereof is given to the creditor."

A similar objection was made and overruled in Randol v. Tatum, 98 Cal. 390. On page 395 it is said: "E. A. Billings did not, when plaintiff refused to receive her money in payment of rents, deposit the same, or any part of it, in a bank or elsewhere, in compliance with the provisions of section 1500 of the Civil Code." And, after a full discussion of the question, it is said at the close of the opinion: "Even if the obligation of defendants must be regarded as that of sureties for the payment of a debt, still I think the tender sufficient to discharge the sureties."

As the case is presented on the record here, we think it clearly appears that the appellant was exonerated from 88 liability on

the note, and that the court erred in rendering judgment against him.

The judgment should be reversed and the cause remanded.

Vanclief, C., and Searls, C., concurred.

For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded.

McFarland, J., Temple, J., Henshaw, J.

SURETY-WHO IS.-A surety is one who undertakes to pay at all events if the principal does not: Saint v. Wheeler etc. Mfg. Co. 95 Ala. 362; 36 Am. St. Rep. 210, and note.

SURETYSHIP-ACCOMMODATION PAPER.-The contract and liability of an accommodation party are, in general, those of a surety for the party accomiaodated: Extended note to Altoona Second Nat. Bank v. Dunn, 31 Am. St. Rep. 745.

DAILEY V. SUPERIOR COUrt.

[112 CALIFORNIA, 94.]

CONSTITUTIONAL LAW, THEATRICAL REPRESENTATION, RESTRAINT OF IS A RESTRAINT OF LIBERTY OF THE PRESS.-A play purporting to represent the facts involved in a criminal case then pending in the courts, and which, if produced, it is alleged, will deprive the accused of a fair trial, cannot be prohibited by the court having jurisdiction of the case, and its order purporting to impose such prohibition is void, if the constitution of the state guarantees to every citizen the right to freely speak, write, and publish his sentiments on all subjects.

A CONTEMPT OF COURT CANNOT BE RESTRAINED by an order of court made in advance. Hence a court has no power by or der to prevent a theatrical representation which it is alleged will, if allowed to be produced, prevent the accused from having a fair and impartial trial on a capital offense for which he has been indicted.

Carroll Cook, for the petitioners.

A. W. Thompson, W. S. Barnes, district attorney, John H. Dickinson, Eugene N. Deuprey, and Edgar D. Peixotto, assistant district attorney, for the respondents.

96 GAROUTTE, J. One Durrant was upon trial in the city of San Francisco, charged with murder, and, while the jury was being impaneled, the petitioner, Dailey, advertised by posters and newspapers that he would produce in a certain theater in said city of San Francisco a play entitled "The Crime of a Century." Thereupon, Durrant presented an affidavit to the court wherein his trial was pending, setting forth that said play was based upon the facts of his case, as established at the prelimin

ary examination and the coroner's inquest, and that the production of said play during the progress of his trial would be an interference with the administration of justice, and deprive him of a fair and impartial trial. The affidavit was full and complete as to details, but we see no purpose to be subserved by further statement of the allegations therein set out. Upon the presentation of the affidavit, the superior court made an order directing this petitioner, Dailey, to desist and refrain from giving any public performance of said play, and further ordered him to cease from advertising the same. The present proceeding is one of certiorari to review the action of the court in making the aforesaid order, it being insisted that the trial court thereby exceeded its power and jurisdiction. The record before us incidentally develops that this order was subsequently served upon petitioner, that he defied the power of the court in making it, produced the play, and was adjudged guilty of contempt; but with those matters we are not now concerned.

The production of a tragedy or comedy upon the theatrical stage is a publication to the world by word of mouth of the text of the author, and, as to the question here presented for our consideration, it is immaterial whether the words be publicly spoken from the stage or upon the hustings, or go out to the world through the channels of the printing-press. By the constitutional 7 provision we are about to invoke a citizen may speak, write, or publish his sentiments with equal freedom, and this case now stands before us exactly as though one of the daily journals was threatening to publish its sentiments pertaining to the conduct of a criminal trial then pending, and the court where such trial was pending and in progress, believing such publication would interfere with the due administration of justice, had issued an order restraining and prohibiting the threatened action of the paper.

We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guaranteed to every citizen by section 9, article 1, of the constitution of this state. That section provides: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited,

AM. ST. REP., VOL. LIII.-11