Lawrence, 4 Cal. 277. Notice, etc.-Stoughton v. Swan, 4 Cal. 213; Orlendorff v. Swartz, 5 Cal. 480; Tevis v. Wood, 5 Cal. 393. Guarantor-Pierce v. Kenedy, 5 Cal. 138. Alteration, etc.-Humphreys v. Crane, 5 Cal. 173. Cancellation, etc.-Cole v. Wilson, April T. 1855. Protestability and seal-Connolly v. Goodwin, 5 Cal. 220. Presentation-Ritchie v. Bradshaw, 5 Cal. 228. Holder-Palmer v. Goodwin, 5 Cal. 458. Loss of note-Price v. Dunlap, 5 Cal. 483. Evidence-Gatliff v. Cram & Co. Oct. T. 1856. Coverture-Simpers v. Sloan, 5 Cal. 457.

205. How official bonds to be approved and filed. 206. Approval to be indorsed on bond, and signed. 207. Bond not to be filed until approved.

221. Failure to file new bond when required to vacate office.

222. Form of additional bond, and effect.

208. Penalty for entering on duties of office without 223. Additional bond not to discharge the original. filing bond.

209. Officers with whom bonds are filed to record the

same, and give certified copies.

210. Form of bond.

211. Obligatory force of bond.

212. Same.

213. Same.

24. Suit on bond not void on first recovery.

215. Substantial defects not to invalidate.

216. Certified copy to be evidence.

217. Act to apply to bonds of office hereafter created. 218. When county officer to be required to execute additional bond.

219. Same.

220. Proceedings to require state officer to file additional bond.

224. Action may be brought on either or both of such bonds.

225. Judgments on both bonds.

226. Contribution of sureties.

227. Discharge of sureties, how effected.

228. Number of sureties required.

229. Bond of appointee to fill vacancy.

230. Proceedings when bond is insufficient.

231. How sureties may be relieved.

232. Liability of sureties.

233. Act applicable to executors, administrators, etc.
234. Duty of officers approving bonds.

235. Apportionment of liability among sureties.
236. Bonds of trustees, etc., how given and prose
cuted.

237. Bonds of justices of peace in first district.

I. BONDS, DUE BILLS, ETC.

Act of April 20, 1850, relative to Bonds, Due Bills and other Instruments in writing.

ARTICLE 197, Sec. 1. That all bonds, due bills, and other instruments of writing, not negotiable, hereafter made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum or sums of money, or articles of personal property, or any sum of money in personal property, or acknowledges any sum of money, or articles of personal property, to be due to any other person, shall be taken to be due and payable, and the sum of money or articles of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person to whom the said bond, bill, or other instrument in writing is made. ART. 198, Sec. 2. Any such bond, due bill, note, or other instrument in writing, not negotiable, made payable to any person, shall be assignable by indorsement thereon under the hand of such person and of his assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.

ART. 199, Sec. 3. Any assignee to whom such sum of money, or personal property, is by such indorsement made payable, or in case of the death of such assignee, his heirs, executors, or administrators, may in his own name institute and maintain the same kind of action for the recovery thereof, against the person who made and executed any such note, bond, bill, or other instrument in writing, or against his heirs, executors, or administrators, as might have been maintained.

against him, by the obligee or payee, in case the same had not been assigned; and in every such action, in which judgment shall be given for the plaintiff, he shall recover his damages and costs of suit, as in other cases; provided, that the maker or obligor shall be allowed to set up in defense to the action of the assignee, any matter which he might have set up to the action of the payee, or obligee, where the same has arisen previous to notice of the assignment, but not otherwise.

ART. 200, Sec. 4. Every assignor, his heirs, executors, or administrators, of every such note, bond, bill, or other instrument in writing, shall be liable to the action of the assignee thereof, his executors or administrators, if such assignee shall have used due diligence by the institution and prosecution of a suit against the maker of such note, bond, bill, or other instrument in writing, or against his heirs, executors, or administrators, for the recovery of the money or property due thereon, or damages in lieu thereof; provided, that if the institution of such suit would have been unavailing, or that the maker had absconded, or left the state, where such assigned note, bond, bill, or other instrument in writing, became due, or within twenty days thereafter, such assignee, his executors or administrators, may recover against the assignor, or his heirs, executors or administrators, as if due diligence by suit had been used. By "due diligence" shall be understood the institution of suit within sixty days after the maturity of the obligation.

ART. 201, Sec. 5. In any action which may hereafter be commenced in any court in this state, upon any of the instruments in writing mentioned in this act, by the obligee or payee thereof, if any of such instruments was made or entered into without a good and valuable consideration, or if the consideration upon which any of such instruments was made or entered into, has wholly or in part failed, it shall be lawful for the defendant, against whom such action shall have been commenced by such obligee or payee, to plead such want of consideration; or that the consideration has wholly or in part failed; and if it shall appear that any of the aforesaid instruments was made or entered into without a good or valuable consideration, or that the consideration has wholly failed, the verdict shall be for the defendant; and if it shall appear that the consideration has failed in part, the plaintiff shall recover according to the equity of the case.

ART. 202, Sec. 6. If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be plead in bar, to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee of such instrument.

ART. 203, Sec. 7. In all cases where any of the before-mentioned instruments of writing are for the payment or delivery of personal property, other than money, and no particular place be specified in such instrument of writing, for the payment or delivery thereof it shall be lawful for the maker of any such instrument of writing to tender, or cause to be tendered, on the day mentioned in any such instrument, the personal property therein mentioned, at the place where the obligee or payee of any such instrument resided at the time of the execution thereof: provided, however, if such property be too ponderous to be easily moved, or if the obligee or payee of such instrument had not, at the time of the execution of such instrument of writing, a known place of residence in the county where the maker resided, then it shall be lawful to tender such personal property at the place where the maker of such instrument resided at the time of the execution thereof. Any tender made in pursuance of this section, shall be equally valid and legal, in case any such instrument of writing shall have been assigned in pursuance of the first section of this act, as if no such assignment had been made.

ART. 204, Sec. 8. A legal tender of any such personal property, shall discharge the maker of any such instrument from all liability thereon; and the property

thus tendered is here declared to be vested in, and belong to, the legal holder and owner of any such instrument of writing, and he may maintain an action for the recovery thereof, or for damages, if the possession be subsequently illegally withheld from him; provided, however, if any such property, so tendered, shall be of a perishable nature, or shall require feeding, or other sustentation, and the person owning and holding any such instrument of writing, be absent at the time of tendering the same, it shall be lawful for every person making such tender to preserve, feed, or otherwise take care of the same; and he shall have a lien on such tendered property, for his reasonable trouble and expense of preserving, feeding, or sustaining such property, until payment be made for such trouble and expense.

ART. 205, Sec. 1. The official bonds of officers shall be approved and filed as follows, to wit: The official bond of the secretary of state shall be approved by the governor, and filed and recorded in the office of the county clerk of the county in which the seat of government is fixed; the official bond of the attorney-general, surveyor-general, controller, treasurer, state printer, and clerk of the supreme court, shall be approved by the governor, filed and recorded in the office of the secretary of state; the official bond of each district attorney shall be approved by the judge of the district, filed and recorded in the office of the county clerk of any one of the counties in the district which may be designated by said judge; the official bonds of sheriffs, coroners, justices of the peace, and all other county officers, shall be approved by the county judge, filed and recorded in the office of the county clerk of their respective counties; the official bonds of county clerks shall be approved by the county judge and filed and recorded in the office of the county recorder.

ART. 206, Sec. 2. The approval of every official bond shall be indorsed thereon, and signed by the court or officer approving the same.

per

ART. 207, Sec. 3. No officer with whom any official bond is required to be filed, shall file and take charge of such bond until approved as prescribed by law. ART. 208, Sec. 4. If any person, elected or appointed to any office, shall form any of the duties thereof without having executed and filed in the proper office any bond required of him by law, he shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in a sum not exceeding one thousand dollars, and his office be declared vacant.

ART. 209, Sec. 5. It shall be the duty of every officer, with whom said bonds shall be filed, carefully to record, keep and preserve the same, and give certified copies thereof, sealed with the seal of his office, to any person demanding the same, upon being paid the same fees as are allowed by law for certified copies of papers in other cases.

ART. 210, Sec. 6. All official bonds, required by law, of officers, shall be in form, joint and several, and made payable to the state of California, in such penalty, and with such conditions as shall be required by law.

ART. 211, Sec. 7. Every official bond executed by any officer pursuant to law, shall be deemed and taken to be in force, and obligatory upon the principal and sureties therein, for any and all breaches of the condition or conditions thereof, committed during the time such officer shall continue to discharge any of the duties of, or hold, such office.

ART. 212, Sec. 8. Every such bond shall be deemed to be in force, and obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such condition shall be expressed therein.

ART. 213, Sec. 9. Every official bond, executed by any officer pursuant to law, shall be in force, and obligatory upon the principal and sureties therein, to and

for the state of California, and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity; and any person, so injured or aggrieved, may bring suit on such bond, in his own name, without an assignment thereof.

ART. 214, Sec. 10. Any such bond shall not be void on the first recovery of a judgment thereon; but suit or suits may be afterwards brought on said bonds, from time to time, and judgment recovered thereon by the state of California, or by any person to whom a right of action may have accrued against such officer and his sureties on said bond, until the whole penalty of such bond shall be exhausted.

ART. 215, Sec. 11. Whenever any such official bond shall not contain the substantial matter, or condition or conditions required by law, or there shall be any defects in the approval or filing thereof, such bond shall not be void so as to discharge such officer and his sureties, but they shall be equitably bound to the state or party interested, and the state or such party may, by action instituted as other suits on official bonds, in any court of competent jurisdiction, suggest the defect of such bond or such approval or filing, and recover his proper and equitable demand or damages from such officer and the person or persons who intended to become and were included as sureties in such bond. (1)

ART. 216, Sec. 12. A copy of any official bond, certified to be correct by the officer having the custody thereof, shall be received as evidence in all courts in this state, in like manner as the original.

ART. 217, Sec. 13. All the provisions and requirements of this act shall apply to the official bond of any officer whose office shall be established hereafter, unless the contrary shall be expressly provided.

ART. 218, Sec. 14. Whenever the sureties, or any one of them, in the official bond of any county clerk, sheriff, coroner, justice of the peace, or other county officer, shall remove without the state, become insolvent, or insufficient, or the penalty of such bond shall become insufficient, on account of recoveries had thereon, or otherwise, it shall be the duty of the county judge of the proper county, of his own motion, or on the showing of any person supported by an affidavit, to summon any such officer to appear before him, at a time stated, not less than three days after service of such summons, and show cause why he should not execute an additional official bond, with good and sufficient surety or sureties.

ART. 219, Sec. 15. Should such officer, after due notice, fail to appear at the time appointed, the matter may be heard and determined in his absence; if said judge shall be of opinion, after examination, that the bond of such officer has become insufficient from any of the causes enumerated in the preceding section of this act, he shall require a further bond, with such security as may be deemed necessary, to be executed and filed within such time as he may order.

ART. 220, Sec. 16. Whenever the official bond of the clerk of the supreme court or of any district attorney, shall become insufficient from any of the causes enumerated in the fourteenth section of this act, the like proceedings may be had before the supreme court in reference to the clerk thereof, and before the district court in reference to the district attorney thereof; and whenever the official bond of the attorney-general, surveyor-general, controller, treasurer, or state printer shall become insufficient from any of the said causes, the like proceeding may be had before the district court for the county in which the seat of government is located; provided, that such proceedings shall be commenced by motion of any person made in open court and supported by affidavit, or as to the official bond of said clerk of the supreme court, district attorneys, surveyor-general, controller, treasurer, or state printer, upon the relation of the attorney-general.

ART. 221, Sec. 17. If any officer, when required so to do, shall fail to file a new bond, his office shall be deemed vacant.

(1) Tevis v. Randall, Oct. T. 1856.

ART. 222, Sec. 18. Such additional bond shall be in such penalty as shall be directed by the court, and shall be in all other respects similar to the original bond, and shall be approved before and filed with the same officer as required in case of the approval and filing of such original bond. Every such additional bond, filed and approved as aforesaid, shall be of like force and obligation upon the principal and sureties therein from the time of its execution, and shall subject the officer and his sureties to the same liabilities, suits and actions, as are prescribed respecting the original bonds of officers.

ART. 223, Sec. 19. In no case provided in the preceding sections of this act shall the original be discharged or affected when additional bond has been given, as herein required, but the same shall remain of like force and obligation as if such additional bond had not been given.

ART. 224, Sec. 20. Such officer and his sureties shall be liable to any party injured or aggrieved by any breach or breaches of any condition or conditions of any such official bond, after the execution of such additional bond, upon either or both of said bonds, and such party may bring his action in such case upon either bond, or he may bring separate actions on said bonds respectively, and may assign the same cause or causes of action, and recover judgment therefor in each

suit.

ART. 225, Sec. 21. If separate judgments shall be recovered on said bonds by such party for the same cause or causes of action, he shall be entitled to have executions issued on such judgments respectively, but he shall only collect, by execution or otherwise, the amount actually adjudged to him on such like cause or causes of action, in one of said suits, together with costs of both suits.

ART. 226, Sec. 22. Whenever the sureties in either bond shall have been compelled to pay any sum of money on account of the principal obligor therein, they shall be entitled to recover, in any court of competent jurisdiction, of the sureties in the remaining bond, a distributive part of the sum thus paid, in the proportion which the penalties of such bonds bear one to the other, and to the sums thus paid respectively.

ART. 227, Sec. 23. Whenever any sureties for any officer wish to be discharged from their liability, they and such officer may procure the same to be done, if such officer will file a new bond, with sufficient sureties, in like form and penalty and with like conditions as the original bond of such officer, to be approved and filed as such original bond. Upon the filing and approval of such new bond such first sureties shall be exonerated from all further liability, but their bond shall remain in full force as to all liabilities incurred previous to the approval of such new bond. The liability of the sureties in such new bond shall in all respects be the same and may be enforced in like manner as the liability of the sureties in the original bond. (1)

ART. 228, Sec. 24. Unless otherwise expressly provided, there shall be at least two sureties upon the official bond of every officer.

Act of May 17, 1853, providing for Security to be given by County Officers acting under Appointments, Etc.

ART. 229, Sec. 1. Upon the appointment of any person to fill a vacancy in office, before entering upon the duties of the office, the person so appointed shall give a bond corresponding in substance and form with the bond required of the same officer when originally elected or appointed, to be approved by the court or officer making the appointment..

Act of May 18, 1853, concerning Sureties on Official Bonds.

ART. 230, Sec. 1. Whenever it shall be shown by affidavit of a credible witness, duly filed, or presented to any court, judge, board, officer, or person whose duty it is to approve the official bond of any officer, that the sureties thereon, or any of them, have, since such bond was approved, died, removed from the state, be

*(1) See Article 231.