« PředchozíPokračovat »
Edwards, 9 Id. 286; Lathrop v. Brittain, 30 Id. The above section is mandatory: Payne v. 680; People v. Love, 25 Id. 520. And the lia- San Francisco, 3 Cal. 125. The elected candi. bilities of the sureties on the different bonds date must qualify within the time prescribed relate only to the acts of the principal in the by law or furieit his office: Iull v. Superior particular office for which the bond is given. Court, 63 Cal. 174; State v. lleisey, 56 Iowa, People v. Gardner, 55 Id. 304. An officer re. 404. To this construction there is an exception elected must give a new bond: People v. Aiken. where the predecessor refuses to deliver up the head, 5 Id. 107.
office and institutes proceedings immediately Continuing liability on bond: See sec. 959, to contest the claimant's title to the office: Peo. and note.
ple v. Potter, 63 Cal. 127. 948. Approval, filing, and recording bonds of state officers.
Sec. 948. Unless otherwise prescribed by statute, the official bonds of state officers must be approved by the governor, and filed and recorded in the office of the secretary of state.
Indorsement of approval: Sec. 952.
Sec. 949. The official bond of the secretary of state must, after it is recorded,
Sec. 950. Unless otherwise prescribed by statute, the official bonds of county and township officers must be approved by the judge of the superior court, recorded in the office of the county recorder, and then filed in the county clerk's office. (Amendment, approved April 3, 1880; Amendments 1880, 20 (Ban. ed. 109); took effect immediately.]
Approval by some other officer than the so approved and filed, the bond is both executed one prescribed by the statute does not invali. and delivered to the people of the state: Sacradate the bond: See note to sec. 963, post. An mento v. Bird, 31 Cal. 66. And in an action acceptance of a bond is an approval thereof: on such a bond, its production by the obligee is People v. Breufogle, 17 Cal. 93. But under sec sufficient evidence of its delivery: Tidvall v. tion 952, in addition to the acceptance, an in- Halley, 48 Id. 610. A bond approved condi. dorsement of the approval is required. The tionally and filed will bind the parties thereto, approving bonds is a judicial act, and where and the clerk approving the same will not be boards of aldermen are invested with this permitted to testify that he had accepted the power, they exercise a judicial function when bond only on the condition of further payments employing that power: Miller v. Sacramento, which were never made: Ashkum v. 'Lake, 15
Chic. Leg. News, 207, citing Mendocino Co. v. A bond cannot be rejected except on the Morris, 32 Cal. 145; Comstock v. Gage, 91 111.328; ground that it is not in form and substance in Babbett v. Board of Education, 59 Id. 364; Mccompliance with the requirements of the stat- Craskey v. Riggs
, 17 Miss. 107; Jones v. State, ate, or that it is not executed by sufficient and 7 Mo. 81; Skelinger v. Yends, 12 Wend. 306; responsible suretics: Miller v. Sacramento, 25 Dutton v. Kelsey, 2 Id. 615; Musselmow v. Com
monwealth, 7 Pa. St. 240. The execution, ap. Approval and filing both necessary: Peo- proval,
and filing of the bond in the office prople v. Kneeland, 31 Cal. 288. And the approval vided by law is a delivery thereof to the people: must precede the filing: Sec. 953, post.When Sacramento Co. v. Bird, 31 Cal. 73. 951. Record of official bond.
Sec. 951. Official bonds must be recorded in a book kept for that purpose, and entitled “Record of Official Bonds.” 952. Approval must be indorsed on bond.
every official bond must be indorsed thereon and signed by the officer approving the same. 953. Bond not to be filed before approval. Sec
. 953. No officer with whom any official bond is required to be filed must
Sec. 952. The
file such bond until approved.
Duty of officer to give copies: Sec. 957. 954. Condition of bond.
Sec. 954. The condition of an official bond must be that the principal will
law, and also all such additional duties as may be imposed on him by any
law of the state of California. Such bond must be signed by the principal and at least two sureties.
Informalities in official bonds: See sec. 963, note. 955. Justification of sureties.
Sec. 955. The officer whose duty it is to approve official bonds required of state, county, or township officers, must not accept or approve any such bond, unless each of the sureties severally justify before an officer authorized to administer oaths, as follows: 1. On a bond given by a state officer, that such surety is a resident and freeholder or householder within this state; and on a bond given by a county or township officer, that such surety is a resident and freeholder or householder within such county, or within an adjoining county; 2. That such surety is worth the amount for which he becomes surety, over and above all his debts and liabilities, in unincumbered property, situated within this state, exclusive of property exempt from execution and forced sale; 3. A member of the board of supervisors shall not be accepted as surety upon the official bond of any county or township officer of his county; nor shall the sheriff, clerk, tax collector, treasurer, recorder, auditor, assessor, or district attorney of the same county become sureties upon official bonds for each other. (Amendment, approved March 30, 1874; Amendments 1873-4, 72; took effect sixtieth day after passage.]
Justification of sureties: See Code Civ. between joint and joint and several bonds is Proc., sec. 1057.
pointed out with respect to the effect of the Following the form prescribed: See note absence of the principal's signature, and where to sec. 963, post.
a joint bond without such signature is declared Must be jointand several: See sec. 958, post. invalid, but a joint and several bond held valid
Validity of bond not signed by the prin. as to the sureties. See People v. Breyfogle, 17 cipal: See Mendocino Co. v. Morris, 32 Cal. 145; Id. 504, for a construction of a joint and several People v. Hartley, 21 Id. 585; Sacramento v. bond signed by various sureties for ditferent Dunlap, 14 Id. 421, where the distinction amounts, and by the principal. 956. Sureties for less than the penal sum.
Sec. 956. When the penal sum of any bond required to be given amounts to more than one thousand dollars, the sureties may become severally liable for portions of not less than five hundred dollars thereof, making in the aggregate at least two sureties for the whole penal sum. And if any such bond becomes forfeited, an action may be brought thereon against all or any number of the obligors, and judgment entered against them, either jointly or severally, as they may be liable. The judgment must not be entered against a surety severally bound for a greater sum than that for which he is specifically liable by the terms of the bond. Each surety is liable to contribution to his co-sureties in proportion to the amount for which he is liable.
Form of judgment: People v. Edwards, 9 Cal. 286; People v. Love, 25 Id. 521; People v. Rooney, 29 Id. 643. 957. Custody of official bonds.
Seo. 957. Every officer with whom official bonds are filed must carefully keep and preserve the same, and give certified copies thereof 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. 958. Form of bonds.
Sec. 958. All official bonds must be in form joint and several, and made payable to the state of California in such penalty and with such conditions as required by this chapter, or the law creating or regulating the duties of the office.
In form joint and several: See note to sign is raised. For example of a bond held to sec. 963, post, upon the effect of informalities be joint and several, see People v. Love, 25 Cal. in otficial bonds, and sec. 955, unte, upon the 521; and of a bond deemed to be joint, see Peo. distinction between joint and joint and several ple v. Hartley, 21 Id. 585. See sec. 956, and bonds, where the omission of the principal to note, for form of judgment on official bonds. 959. Construction of bonds.
Sec. 959. Every official bond executed by any officer pursuant to law is in force and obligatory upon the principal and sureties therein for any and all, breaches of the conditions thereof committed during the time such officer continues to discharge any of the duties of or hold the office, and whether such breaches are committed or suffered by the principal officer, his deputy, or clerk.
Continuing liability on bond.—The pro- in different states, see Brandt on Suretyship, vision here that the liability of the sureties secs. 458 et seq.; Baylies on Suretyship, 156 continues while the principal holds the office et seq.; 1 Dillon on diun. Corp., 3d ed., sec. settles much of the difference existing in de 216, note. cided cases upon this question. The sureties Compare with Hubert v. Mendenheim, 64 of hold-over officers were pronounced liable in Cal. 213, especially with reference to the bindPlacer Co. v. Dickerson, 45 Cal. 12. For a ing effect of bonds of deputies continued in consideration of the varying views entertained office on re-election of their principal. 960. Obligation as to duties required by new acts.
Sec. 960. Every such bond is 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 must be expressed therein.
Imposition of new duties.—This section, that such bonds shall operate a permanent, based on Stats. 1850, p. 75, sec. 8, finds its continuing liability for all duties which under justification in the form of the official bond as subsequent laws may be attached to the office, required by section 954. Similar statutory as well as for such duties as are attached when provisious are to be found in other states. In the bond is executed. When such declaration Morrow v. Wood, 56 Ala. 1, Chief Justice is made, the sureties entering into the bond asBrickell, discussing this question in that case, sume liability, not only for the performance of says: “If the engagement of suretyship relates the specific duties attached to the office when to a particular ottice, with prescribed duties, it their engagement is entered into, but also such extends only to such duties as are prescribed as may be attached during the oflicial term of when the engagement is entered into, and not their principal.
A surety executing to such as may be subsequently attached to the such bond voluntarily assumes liability for his office: 1 Chit. Con., 11th Am. ed., 763, note. principal according to the obligation of the The cases usually referred to in illustration are bond as the law defines it; and changes in the carlett v. Attorney-General, Park. 277; Bow. duty of the principal are not an alteration of
his engagement.” Under the former act, from Statutory official bonds must be read and con. which this section was drawn, the supreme strued, in determining the extent of their obli- court of California said that the liability for gation and the liability the sureties thereon the performance of further duties imposed upon assume, in connection with the statutes which the officer referred "only to duties properly create the office, define its powers and duties, appertaining to his office as such, and not to authorize the execution of such bonds, and ap new duties belonging to a distinct office, with point the conditions to which they are subject. the execution of which he may be charged:” It is competent for the legislature to prescribe People v. Edwards, 9 Cal. 286, 292.
961. Suit on bonds.
Sec. 961. Every official bond executed by any officer pursuant to law is 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. Stats
. 1850, p. 75, sec. 9. Action is properly the principal and sureties are estopped to deny brought by the county for defalcation of treas. the official character of the principal obligor: urer
: Sacramento Co. v. Bird, 31 Cal. 72; and People v. Jenkyns, 17 Id. 500.
962. Subsequent suits.
Sec. 962. No such bond is void on the first recovery of a judgment thereon; but suit may be afterwards brought, from time to time, and judgment recov
ered thereon by the state of California, or by any person to whom a right of action has accrued against such officer and his sureties, until the whole penalty of the bond is exhausted.
Stats. 1850, sec. 10, p. 75.
Executors' bonds: See Code Civ. Proc., sec. 1302. 963. Defects in form, approval, filing, etc., not to vitiate.
Sec. 963. Whenever an official bond does not contain the substantial matter or conditions required by law, or there are any defects in the approval or filing thereof, it is not void so as to discharge such officer and his sureties; but they are equitably bound to the state or party interested; and the state or such party may, by action in any court of competent jurisdiction, suggest the defect in the bond, approval, or filing, and recover the proper and equitable demand or damages from such officer and the persons who intended to become and were included as sureties in such bond. Stats. 1850, p. 75, sec. 11.
taken the oath of office: Bonta v. Mercer Co. This section is not applicable where the per. Court, 7 Bush, 576; Marshall v. Hamilton, 41 son giving the bond, and sought to be charged Miss. 229. Though no seal be affixed, yet as an officer, was not an ollicer: Quiggle v. will the bond be held valid as a common-law Trumbo, 56 Cal. 626.
obligation: Board of Education v. Fonda, 77 Informalities in official bonds.-Official N. Y. 350; and likewise, though no revennebonds are given for the benefit of the public stamp be attached thereto: State v. Garlon, 32 against the fraud and peculations of persons in Ind. l. The absence of the principal's signaofficial positions; the tendency of the courts is, ture is, however, an incurable defect: People v. therefore, to disregard technical objections and Hartley, 21 Cal. 585; and see Mendocino Co. v. to declare them invalid only on the most satis. Morris, 32 Id. 145, and sec. 955, ante; but the factory grounds. The exact form prescribed is failure to execute the bond by one of those not essential unless made so by the charter named therein as a surety will not release the or act: Hubert v. Mendenheim, 64 Cal. 213; others: Los Angeles v. Mellius, 59 Cal. 414. 1 Dillon on Mun. Corp., sec. 216; Dorsey v. A bond executed before it is required, Moore Smyth, 28 Cal. 21; Probate Court v. Strong, v. State, 9 Mo. 330, or even after the time pre27 Vt. 202; Place v. Taylor, 22 Ohio St. 317; scribed by the statute, is valid: State v. Rhoades, Berrien Co. v. Bunbury, 45 Mich. 79; Tevis v. 6 Nev. 352; Monteith v. Commonwealth, 15 Randall, 6 Cal. 632. Although an official bond Gratt. 172; State v. Cooper, 53 Miss. 615. is not taken in the manner nor by the persons Surety signing bond with blanks for other required by law to take it, yet it will be held sureties, and delivering it to the principal, who good as a voluntary bond and bind the sureties: fills up the blanks, is bound: State v. Pepper, State v. McAlpin, 4 Ired. L. 140; State v. Per. 31 Ind. 76; Webb v. Baird, 27 Id. 368; Wright kins, 10 Id. 333. The failure of the proper officers Harris, 31 Iowa, 272. to approve an official bond, or its approval by A bond given by one who assumed to act a different person from the one whose duty it as a receiver, under appointinent of a court is to approve it, will not invalidate it nor re. commissioner, is not informal under the above lease the sureties from their liabilty: Green v. section. It is no bond at all; there was no Wardwell, 17 Ill. 278; Marshall v. llamilton, otficer to give a bond; the appointment was a 41 Miss. 229: Jont8 v. State, 7 Mo. 81; People nullity: Quiggle v. Trumbo, 56 Cal. 626. v. Johr, 22 Mich. 461; People v. Edwards, 9 Suggesting defect. –The action provided Cal. 286; People v. Evans, 29 Id. 4.29; Mendo. for in this section is not a bill to reform the cino Co. v. Morris, 32 Id. 145; sec. 950, and note, bond, so as to make it conforın to the provisante. The validity is not affected by the fact ions of the code. The section means that it that the bond was not signed and acknowledged is only necessary to suggest the defect, and in the presence of a particular officer, as required thereupon, if the breach be proved, the court by law: Slate v. Blair, 32 Ind. 3; nor that it will be authorized to render judgment prewas made by the deputy to his principal instead cisely as if the bond conformed to the statu; of to the state: Hubert v. Mendenheim, supra; tory requirements: Hubert v. Mendenheim, 64 nor by the fact that the officer had not Cal. 213. 964. Insufficiency of sureties.
Sec. 964. Whenever it is shown by the affidavit of a credible witness, or otherwise comes to the knowledge of the judge, court, board, officer, or other person whose duty it is to approve the official bond of any officer, that the sureties or any one of them have, since such bond was approved, died, removed from the state, become insolvent, or from any other cause have become incompetent or insufficient sureties on such bond, the judge, court, board, officer, or other person may issue a citation to such officer, requiring him, on a day therein named, not less than three nor more than ten days after date, to appear and
show cause why such office should not be vacated, which citation must be served and return thereof made as in other cases.
If the officer fails to appear and show good cause why such office should not be vacated, on the day named, or fails to give ample additional security, the judge, court, board, officer, or other person must make an order vacating the office, and the same must be filled as provided by law.
Insolvency of some sureties does not re- notice of incompetency of some of the sureties lease the others: Sacramento Co. v. Bird, 31 does not release the other sureties: People v. Cal. 66.
Scannell, 7 Cal. 432, in which the act of 1853, Discharge of sureties: See secs. 970, 972 et Stats. 1853, 223, upon which this section is Beq ; People v. Evans, 29 Cal. 429.
based, is examined. And see People v. Jenkyns, Ömission of approving officer to act upon 17 Cal. 500. 965. Form of additional bond.
Sec. 965. The additional bond inust be in such penalty as directed by the court, judge, board, officer, or other person, and in all other respects similar to the original bond, and approved by and filed with the same officer as required in case of the approval and filing of the original bond. Every such additional bond so filed and approved is of like force and obligation upon the principal and sureties therein, from the time of its execution, and subjects the officer and his sureties to the same liabilities, suits, and actions as are prescribed respecting the original bonds of officers.
Stats. 1850, p. 74, sec. 18. 966. Force of original bond.
Sec. 966. In no case is the original bond discharged or affected when an additional bond has been given, but the same remains of like force and obligation as if such additional bond had not been given. 967. Liability of officers and sureties.
Sec. 967. The officer and his sureties are liable to any party injured by the breach of any condition of an official bond, after the execution of the additional bond, upon either or both bonds, and such party may bring his action upon either bond, or he may bring separate actions on the bonds respectively, and he may allege the same cause of action, and recover judgment therefor in
968. Separate judgments on bonds.
Sec. 968. If separate judgments are recovered on the bonds by such party for the same cause of action, he is entitled to have execution issued on such judgments respectively; but he must only collect, by execution or otherwise, the amount actually adjudged to him on the same causes of action in one of the suits, together with the costs of both suits. 969. Contribution between sureties.
Seo. 969. Whenever the sureties on either bond have been compelled to pay any sum of money on account of the principal obligor therein, they are entitled to recover in any court of competent jurisdiction of the sureties on 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. 970. Discharge of sureties. Sec
. 970. Whenever any sureties on the official bond of any officer wish to be discharged from their liability, they and such officer may procure the same to be done if such officer will execute a new bond with sufficient sureties in