attempted to be stated in the complaint. The complaint filed in a suit is not the obligation, nor the basis of the obligation of the principal which the surety guarantees. The contract of the Surety Company in this action was that it would undertake that the defendant would pay to plaintiff the "amount of whatever judgment may be recovered in said action." The obligation which it was sought to enforce against the principal through the suit and judgment demanded was the payment of the liability arising under the contracts set out in the original complaint. There was no alteration or modification of that contractual liability of the defendant. The plaintiff was not estopped by his original complaint from making any corrections or supplying any omissions by amendment which were proper or necessary to fully set forth the liability of the defendant under the contract sued on. The surety entered upon its contract to guarantee payment of the judgment, any judgment on the cause of action, with presumptive understanding that the original complaint might be amended to cover any damages which had occurred prior to commencement of suit from a breach of the contracts which constituted the cause of action, though omitted from the original complaint. (Bierce v. Waterhouse, 219 U. S. 320, [55 L. Ed. 237, 31 Sup. Ct. Rep. 241, see, also, Rose's U. S. Notes].)

If the liability of the release bond had been predicated upon a judgment on the precise facts pleaded in the original cause of action, then such complaint would be the measure of the liability, but the surety contracted upon the basis of whatever judgment was obtained in the action, and it will be presumed to have taken into consideration the possibility of changes by amendment in the extent and nature of the liability incident to the cause of action.

Indeed, the Surety Company here did safeguard itself from any material increase in its liability through amendments to the complaint by fixing the penalty of its bond at a sum only sufficiently greater than demanded by the prayer of the original complaint to cover prospective interest and costs.

[5] Appellant makes the further point on this appeal that the bond is exonerated, or at least the right of recovery suspended, by the death of the defendant and the prosecu

tion of the action to judgment against the administrators of his estate.

It is true that the death of the defendant is held to operate to dissolve an attachment (Myers v. Mott, 29 Cal. 359, [89 Am. Dec. 49]; Ham v. Cunningham, 50 Cal. 365). The right to pursue the debtor's property under attachment ends with his death, the attached property falls into the estate, and the only right left the attaching creditor as against the decedent's estate is to follow it under the modes of disposition provided by the probate law. But here the remedy of the plaintiff is not concerned with the estate of the deceased debtor. He has an independent remedy created by his contract with the surety company.

That fact is also an answer to the objection that there is no judgment that is enforceable except in the due course of administration.

[6] As against the administrators and the property of the estate the judgment recovered is only payable from the assets of the estate in due course of administration. It is the law of California as affecting the administration of estates, that such judgment is only the equivalent of an allowed and approved claim. (Code Civ. Proc., sec. 1504; Hall v. Cayot, 141 Cal. 13, [74 Pac. 299]; Estate of Heller, 169 Cal. 77, [145 Pac. 1008]; Haub v. Leggett, 160 Cal. 491, [117 Pac. 556].)

[7] There appears to be no reason, however, for putting this limitation upon the effect of such judgment in fixing the liability of a guarantor under an original and independent contract to respond in the penal sum of its undertaking upon failure of payment on demand of any judgment in the action. The judgment against the administrators is still a judgment, qualified only by the limitation that it may be contested by the heirs upon the settlement of the account of the administrator. (Code Civ. Proc., sec. 1637; Haub v. Leggett, supra.) The judgment in this action fixes the liability of the surety so far as the conclusiveness of the judgment on the original claim is concerned, and the plaintiff is under obiigation to look no further than to his surety in enforcing collection. Moreover, it is pleaded in the complaint, and found by the court, that the appellant's liability on this bond has been presented and allowed as a contingent claim against the estate, and confirmed by a decree

settling the account of the administrators in which this claim is returned as one of the liabilities of the estate. (Code Civ. Proc., sec. 1637.)

As to the survival of the right of action upon the bond for release after the death of the debtor in attachment proceedings, it is held by the supreme court of Illinois in a similar case, Sharpe v. Morgan, 144 Ill. 382, [33 N. E. 22], that after attachment released on giving of bond the action proceeds in personam (Hill v. Harding, 93 Ill. 77), and in event of the death of original defendant and further prosecution of the suit to judgment against his administrators, the judgment obtained is a personal judgment and neglect by administrators to pay the same is a breach of the bond. In its opinion in the above case the court says: "Appellant [the surety] voluntarily joined with the attachment debtor, and took upon himself the obligation prescribed by the statute, to pay whatever judgment might be rendered in the action. He was bound to know that upon the death of Allison [the defendant] the suit would not abate but might proceed to final judgment against his personal representative.'

The undertaking in the cited case was a statutory bond, and the parties were bound by the intendments of the statute in interpreting its obligations. But the conclusion can be no different here under the implied understanding of the parties arising from the fact that they were contracting with presumptive knowledge of the law; and the surety here is presumed to have known and have in mind the fact that this suit would not abate in the event of the death of defendant but could be prosecuted against his administrators. (Code Civ. Proc., sec. 385.)

[8] In this case the Surety Company stands upon a purely technical defense, and while it is true that the rule is in its favor that it may rely upon the strict terms of its contract, there is no reason in law or equity why the same liberality of construction and interpretation of those terms should not be applied as in construing any other contract.

In the matter of the obligations of corporations organized to execute surety bonds and securities as a business there is a growing disposition in the courts to hold such sureties to their obligations unless there has been some material

departure from the conditions of the agreement. (21 R. C. L., p. 1160; Ann. Cas. 1912B, 1087.)

The judgment is affirmed.

Shaw, J., Shurtleff, J., Lennon, J., Wilbur, J., Lawlor, J., and Angellotti, C. J., concurred.

Rehearing denied.

All the Justices concurred, except Shaw, J., who was ab

sent.

[Sac. No. 3266. In Bank.-September 16, 1921.]

F. G. ATHEARN, Petitioner, v. G. W. NICOL et al., Judges of the Superior Court, Respondents.

[1] SUPERIOR COURT-INCREASE IN NUMBER OF JUDGES OF COUNTYPOWER OF GOVERNOR.-The Governor of the state is authorized to temporarily increase the number of superior court judges in a county by a request that judges from other counties sit within that county as superior court judges.

[2] DRAINAGE DISTRICT-DETERMINING VALIDITY OF ASSESSMENTS— JURISDICTION OF COURT.-Assuming that the matter pending before a superior court of hearing and determining a question as to the validity and proper apportionment of assessments of a drainage district is a judicial one, as the statute expressly declares, the court has jurisdiction of the matter, and three superior court judges selected by the Governor to sit in that court in the matter have jurisdiction to dispose of the same.

[3] ID. DISQUALIFICATION OF JUDGE.-The judge of the superior court of a county is disqualified, under subdivision 5 of section 170 of the Code of Civil Procedure, from hearing proceedings to determine the validity and proper apportionment of assessments of a drainage district when they affect or relate to any real property within his county.

[4] SUPERIOR COURT-EXTRA JUDGES.-There may be as many sessions of the court as there are superior court judges in a county, including those assigned thereto by the Governor and those acting pro tempore, and all of these judges can also sit together at one time for the trial of a case; and the constitution contemplates a session held by one or more judges as well as by one and by all.

[5] ID.-JUDGES SITTING TOGETHER.-The constitution authorizes three judges of the superior court, if they choose, to sit together for the purpose of hearing any proceeding over which the court itself has jurisdiction.

[6] ID. DETERMINATION BY MAJORITY.-The general rule is that where authority is conferred upon a court of more than one judge, the majority can render decisions of the court in the absence of express statutory or constitutional provision to the contrary.

[7] ID.-JURISDICTION-SUFFICIENCY OF COMPLAINT.-If a court sitting to determine the validity and apportionment of assessments of a drainage district has jurisdiction and authority to pass upon the validity of the assessments and the questions arising with relation thereto, the sufficiency of the complaint or document filed to invoke that jurisdiction is one to be determined by it upon the hearing and does not affect its jurisdiction to pass thereon. [8] DRAINAGE DISTRICT-DETERMINATION OF VALIDITY OF ASSESSMENTS -JUDICIAL PROCEEDINGS.-The legislature, under the act relating to the issuance of bonds for assessments for improvements in the Sacramento and San Joaquin drainage district (Stats. 1919, p. 1092, secs. 4, 5), contemplated a court proceeding, and provided that such proceeding should be commenced in the superior court, and upon a judgment by it affirming the validity of the bonds no further attack is permitted thereon.

APPLICATION for Writ of Prohibition. Writ denied.

The facts are stated in the opinion of the court.

Haven, Athearn, Chandler & Farmer, for Petitioner.

Elston, Clark & Nichols, Amici Curiae, for Petitioner. Frank Freeman for Respondents.

Devlin & Devlin, Amici Curiae, for Respondents.

Thomas Rutledge, Brown & Alberry and Mastick & Partridge for West Side Land Owners.

WILBUR, J.-The petitioner asks for a writ of prohibition directed to the respondents, who are judges of the superior court, requiring them to desist from the contemplated trial of certain proceedings instituted under and by virtue of an act of the legislature (Stats. 1919, p. 1092, secs. 4, 5) relating to the issuance of bonds for assessments