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 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. be 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. come insolvent, or from any other cause have become incompetent or insufficient sureties on such official bond, it shall be the duty of such court, judge, board, officer, or person, to issue a citation to such officer, requiring such officer, on a day therein named, not less than three nor more than ten days after date, to appear and show cause why such office shall not be vacated, which citation shall be served, and return thereof made, as in other cases. If said officer shall fail to appear and show good cause why such office should not be vacated, on the day named, or shall fail to give ample additional surety, it shall be the duty of such court, judge, board, officer, or person, to make an order vacating such office, and the same shall be filled by election or appointment, as provided for by law. ART. 231, Sec. 2. Any surety on the official bond of a city, county, or state officer, may be relieved from liabilities thereon afterwards accruing, by complying with the following provisions of this act. Sec. 3. Such surety shall file with the court, judge, board, officer, person or persons authorized by law to approve such official bond, a statement in writing, setting forth the desire of the said surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which statement shall be subscribed and verified by the affidavit of the party filing the same. Sec. 4. A copy of the statement shall be served on the officer named in such official bond, and due return or affidavit of service made thereof, as in other cases. Sec. 5. In ten days after the service of such notice, the court, judge, board, officer, person or persons with whom the same may be filed, shall make an order declaring such office vacant, and releasing such surety from all liability thereafter, to arise on such official bond, and such office shall thereafter be held in law as vacant, and be immediately filled by election or appointment as provided for by law, as in other cases of vacancy of such office, unless such officer shall have, before that time, given good and ample surety for the discharge of all his official duties as required originally. ART. 232, Sec. 6. This act shall not be so construed as to release any surety from damages, or liabilities for acts, omissions, or causes existing, or which arose before the making of such order as aforesaid, but such legal proceedings may be had therefor in all respects as though no order had been made under the provisions of this act. ART. 233, Sec. 7. Executors, administrators and guardians shall be held as county officers, within the provisions of this act. Act of April 2, 1857, concerning Official and other Bonds ART. 234, Sec. 1. In all cases where official bonds are required, or may be hereafter required from state or county officers, the officer or officers whose duty it is, or may be, to approve such bonds, shall not accept or approve any such bond unless, in addition to the present requirements of the law, the sureties shall severally justify before an officer authorized to administer oaths as follows: 1. On a bond given by a state officer, that he is a resident and freeholder or householder within this state; and on a bond given by a county officer, that he is a resident and freeholder or householder within such county, or within an adjoining county. 2. That he is worth double the amount for which he becomes surety, over and above all his debts and liabilities, in unincumbered property, situated within this state, which may be levied upon, and is not exempt from execution and forced sale. ART. 235, Sec. 2. When the penal sum of any bond hereafter to be given, amounts to more than one thousand dollars, the sureties may become severally liable for portions not less than five hundred dollars of such penal sum, making in the aggregate at least two sureties, for the whole penal sum. And if any such bond shall become forfeited, an action may be brought thereon, against all or any number of the obligors, and judgment be entered against the obligors, either jointly or severally, as they may be liable; provided, that judgment shall not be entered against a surety severally bound, for a greater sum than that for which he is specifically liable, by the terms of said bond. Each surety shall be liable to contribution to his co-sureties, in proportion to the amount for which he is liable. ART. 236, Sec. 3. All bonds or undertakings given by trustees, receivers, assignees, or officers of a court, in an action or proceeding, for the faithful discharge of their duties, where it is not otherwise provided by law, shall be in the name of, and payable to, the people of the state of California; and upon the order of the court where such action or proceeding is pending, may be prosecuted for the benefit of any and all persons interested therein. Act of March 31, 1857, concerning Official Bonds of Justices of the Peace in the First Judicial District. ART. 237, Sec. 1. In the counties of the first judicial district of this state, except in the cities of San Diego, Los Angeles and San Bernardino, each justice of the peace shall execute a bond to the people of the state, in such sum as shall be determined by the board of supervisors, respectively, of said counties, conditioned for the faithful performance of his duties, and file the same with the clerks of said board. See Office, Courts of Justice, Civil Practice. JUDICIAL DECISIONS. 1. THE failure of the governor to indorse his approval on the bond does not vacate an office, where an incumbent has, within the time fixed by law, given a sufficient bond, presented it to the governor for his approval, and deposited it in the office of the secretary of state. The People ex rel. Casserly v. Fitch, 1 Cal., 519. 2. When alteration or erasure will defeat recovery on a bond. Turner v. Billagram, 2 Cal., 520. 3. In an action upon a bond or written undertaking there can be no constructive parties jointly liable with the proper obligors. Lindsay v. Flint, 4 Cal., 88. 4. An omission to allege delivery in a suit on a bond can be taken advantage of only on demurrer. Garcia v. Satrustegui, 4 Cal., 244. 5. The breach of a bond for title does not discharge the debt due for the purchase money. Bagley v. Eaton, 5 Cal., 497. 6. Granting the principal an extension of time of payment without the knowledge of the surety, discharges the liability of the surety. Doulan v. Parrot & Naglee, July T., 1856. 7. A bond made payable to the "People of the State of California," or to the "State of California," is sufficiently definite as to the obligee. Tevis v. Randall, Oct. T., 1856. 8. In a bill in equity for appointment of a receiver, etc., the court refused to appoint a receiver on condition that defendant file a bond to account as receiver. The bond was voluntarily given, and may be enforced as a common law bond. Baker v. Bartol, April T., 1857. 9. Though the bond is payable to the state, the action may be brought in the name of the real party in interest. Id. Replevin bond-Wingate v. Brooks, 3 Cal., 112. Injunction bond-Gelston v. Whitesides, 3 Cal., 309. Appeal bond-Osborn v. Hendrickson, April T., 1856. 245. Election of officers; qualifications of, and of elec- 259. Mayor's duties. tors. 246. Number of councilmen, how fixed; wards. 260. Recorder, jurisdiction of. 247. Meetings of common council-their powers; man- 262. Marshal, duties of. ner of doing business. 248. By-laws. 249. May borrow money. 263. Assessor, duties of. ARTICLE 266. Certain offices may be created. 267. Officers, how to qualify. 268. Election of; when to qualify. 269. Term of office. ARTICLE 270. Office, when deemed vacant. 271. When and how improvement to be made in streets, etc. Act of March 11, 1850, for the Incorporation of Cities. ARTICLE 238, Sec. 1. Any city in this state, having a population of more than two thousand persons, may be incorporated according to the provisions of this act, either by the legislature, or by the county court,(1) upon application. ART. 239, Sec. 2. When any city is incorporated by a special act of the legislature, such act may simply define the boundaries of the city, and declare it incorporated, in which case it shall be deemed incorporated according to the provisions of this act; or may declare it incorporated under the same, with such changes as may be specially named. ART. 240, Sec. 3. Whenever a majority of the inhabitants of any town or village, within the state, who shall be qualified electors, and shall have resided in such town or village thirty days, shall present a petition to the county court (1) of the county in which such town or village is situated, setting forth the metes and boundaries of their town and common, with a plat of the same, and praying that they may be incorporated under the provisions of this act, and the court shall be satisfied that the population of such town or village exceeds two thousand, and that a majority of the qualified electors thereof have signed the petition, the court shall declare such town or village incorporated as a city, by the name stated in the petition. ART. 241, Sec. 4. The order of incorporation shall designate the metes and bounds of the city, which shall in no case include an area of more than four square miles. The order, together with the petition and town plat, shall be entered on the records of the court, and thenceforth the inhabitants within such bounds shall be incorporated in like manner as if specially named in this act. ART. 242, Sec. 5. The boundaries of any city may, at any time, be changed by the county court, upon application, to be made and acted upon in like manner as an application to be incorporated; provided, that if it be proposed to extend the boundaries of the city, the application shall not be granted, unless a majority of all the qualified electors resident within the limits of the additional land intended to be included shall unite in the application; provided, also, that in no case shall the limits of four square miles be exceeded. ART. 243, Sec. 6. When an application is made either for an incorporation or for a change of boundaries, twenty days' notice thereof shall be given, either by publication in some newspaper printed in the city, or, if there be none, then by notices posted up in three public places in the city. Proof of such notice must be made to the court, before the application is heard. At the hearing, any qualified elector who has been a resident of the city for thirty days, next preceding, may appear and file a written opposition, which shall be heard and determined by the court. ART. 244, Sec. 7. For the government of every city incorporated under the provisions of this act, there shall be a mayor, recorder and common council, to consist of members, one of whom shall be elected president. The said mayor, recorder and councilmen shall be a body corporate and politic, by the name and style of "the mayor, recorder and common council of the city of ," and by that name they and their successors shall be known in law, have perpetual succession, sue and be sued, in all courts and in all actions whatsoever; may grant, purchase, hold and receive property, real and personal, within said city; may lease, sell and dispose of the same for the benefit of the city; may provide for the regulation and use of all commons belonging to the city, and may have a common seal and alter the same at pleasure; provided, that they shall not (1) See Supervisors. |