like form, penalty, and conditions, and to be approved and filed as the original bond. Upon the filing and approval of the new bond such first sureties are exonerated from all further liability; but their bond remains 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 is in all respects the same, and may be enforced in like manner as the liability of the sureties in the original bond. See sec. 964, ante. 971. Persons appointed to fill vacancies, bonds of. SEC. 971. Any person appointed to fill a vacancy, before entering upon the duties of the office, must give a bond corresponding in substance and form with the bond required of the officer originally elected or appointed, as hereinbefore provided. 972. Release of sureties. SEC. 972. Any surety on the official bond of a city, town, county, or state officer may be relieved from liabilities thereon afterwards accruing by complying with the provisions of the three sections following. 973. Statement for release. SEC. 973. Such surety must file with the judge, court, board, officer, or other person authorized by law to approve such official bond, a statement in writing setting forth the desire of the surety to be relieved from all liabilities thereon afterwards arising, and the reasons therefor, which statement must be subscribed and verified by the affidavit of the party filing the same. 974. Service. SEC. 974. A copy of the statement must be served on the officer named in such official bond, and due return or affidavit of service made thereon as in other cases. 975. When office may be declared vacant for want of official bond. SEC. 975. In ten days after the service of such notice, the judge, court, board, officer, or other person with whom the same is filed, must make an order declaring such office vacant, and releasing such surety from all liability thereafter to arise on such official bond, and such office thereafter is in law vacant, and must be immediately filled by election or appointment, as provided for by law as in other cases of vacancy of such office, unless such officer has before that time given good and ample surety for the discharge of all his official duties as required originally. 976. Supplemental bond. SEC. 976. Whenever from any cause a surety on the official bond of any officer elected or appointed under the laws of this state withdraws from his bond or becomes insolvent, or from other cause becomes incompetent to remain as surety thereon, such officer may file a supplemental bond, executed and approved in the same manner as the original bond for the amount for which the surety so withdrawing or incompetent was bound by the original bond. 977. Effect of release on bond. SEC. 977. The release, discharge, voluntary withdrawal, or incompetency of a surety on any official bond does not affect the bond as to the remaining sureties thereon, or alter or change their liability in any respect. Formerly otherwise in this state: People v. Buster, 11 Cal. 205. But even before the code, a release of a surety, as by his insolvency, not deemed in law a release by the obligee, did not affect the liability of the co-surety: Sacramento Co. v. Bird, 31 Id. 67. 978. Supplemental bond after withdrawal. SEC. 978. Whenever a surety on any official bond gives notice of intention to withdraw therefrom, or is removed, or becomes otherwise incompetent, the principal on the bond must, within ten days after such notice or disqualification, execute and file, subject to the same conditions as the original, a supplemental bond, wherein must be recited the names of the remaining original sureties, and the name or names of the new surety or sureties and the respective amounts for which he or they become bound, who are substituted in lieu of the surety or sureties released or disqualified. 979. When supplemental bond not required. SEC. 979. Whenever the original bond is given for an amount in excess of the sum required by law, if the withdrawal or removal of any surety does not reduce the bond below the amount required by law to be secured by sureties, then no supplemental or additional bond is required or necessary; and whenever any supplemental bond is so filed and approved, the officer with whom the bond is filed, or in whose office the same is recorded, must give ten days' notice-by publication in some paper published in the county, or if there is no paper in the county, then in the county nearest thereto in which a newspaper is published, and in case of the bond of a state officer, in some paper at the city of Sacramento-of the fact of the filing of the bond and the name of the party withdrawing from the former and the substitute on the new bond; and until the filing and approval of the supplemental bond the sureties on the former bond are liable for all the acts of their principal. 980. Effect of discharge of sureties. SEC. 980. No surety must be released from damages or liabilities for acts, omissions, or causes existing or which arose before the making of the order mentioned in section six hundred and ninety-five, but such legal proceedings may be had therefor in all respects as though no such order had been made. 981. Provisions of article apply to bonds of administrator, etc. SEC. 981. The provisions of this article apply to the bonds of receivers, executors, administrators, and guardians. Receivers' bonds: Code Civ. Proc., secs. 566, 567. Executors' and administrators' bonds: Id., secs. 1387 et seq. Guardians' bonds: Id., secs. 1754, 1756, 1758, 1788, 1803-1805, 1807, 1809. 982. Bonds of receivers, assignees, etc. SEC. 982. 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, must be in the name of and payable to 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. The state the payee: See sec. 958, ante. 983. Actions on official bonds-Effect of notice of action. SEC. 983. When an action is commenced in any court in this state for the benefit of the state, to enforce the penalty of or to recover money upon an official bond or obligation, or any bond or obligation executed in favor of the state of California, or of the people of this state, the attorney or other person prosecuting the action may file with the court in which the action is commenced an affidavit, stating either positively or on information and belief that such obligation was executed by the defendant or one or more of the de bond or POL. CODE-14 209 fendants (designating whom), and made payable to the people of the state, or to the state of California, and that the defendant or defendants have real estate or interest in lands (designating the county or counties in which the same is situated), and that the action is prosecuted for the benefit of the state; and thereupon the clerk receiving such affidavit must certify to the recorder of the county in which such real estate is situated the names of the parties to the action, the name of the court in which the action is pending, and the amount claimed in the complaint, with the date of the commencement of the suit. Lis pendens: Code Civ. Proc., secs. 409, 755. 984. Record of notice of action. SEC. 984. Upon receiving such certificate the county recorder must indorse upon it the time of its reception, and such certificate must be filed and recorded in the same manner as notices of the pendency of an action affecting real estate; and any judgment recovered in such action is a lien upon all real estate situated in any county in which such certificate is so filed belonging to the defendant, or to one or more of such defendants, for the amount that the owner thereof is or may be liable upon the judgment, from the filing of the certificate; and the fees due the clerk and recorder for the services required are a charge against the county where the suit is brought, to be recovered like other costs. 985. Bonds of deputies, clerks, etc. SEC. 985. Every officer or body appointing a deputy, clerk, or subordinate officer may require an official bond to be given by the person appointed, and may fix the amount thereof. Deputies' bonds: See, as an illustration, Tidball v. Halley, 48 Cal. 612. In Hubert v. Menden heim, 64 Id. 213, the court gives careful consideration to this question, and concludes that the bond is good but for the term for which the principal was elected and the deputyship created. A new bond can and ought to be exacted from a deputy retained during a second term. 986. Official bond of county clerk, where filed. SEC. 986. The official bond of the county clerk shall, after being recorded, be filed in the office of the county treasurer, and the safe-keeping of the same is hereby made the duty of the county treasurer. [New section, approved March 27, 1874; Amendments 1873-4, 73; took effect sixtieth day after passage.] Filing bonds: Sec. 950, ante. 987. Enforcement of contract to sell land affected by lien. SEO. 987. In any action to compel the specific performance of an agreement to sell real estate affected by the lien created by the filing of the certificate mentioned in section nine hundred and eighty-four, which said agreement shall have been made prior to the filing of such certificate, but the purchase price under which said agreement shall not have become due until after the filing of said certificate, the judge of the superior court in which said action for specific performances is tried, shall, if the purchaser is otherwise entitled to specific performance of such agreement, order the said purchaser to pay the purchase price, or so much thereof as may be due, to the state treasurer, taking his receipt therefor. Upon such payment the purchaser shall be entitled to enforcement of specific performance of said agreement, and shall take said real estate free from the liens created by the filing of said certificate. The moneys so paid to the state treasurer shall be held by him pending the litigation mentioned in said certificate, and subject to the lien created by the filing of said certificate. [New section, approved March 14, 1885.] ARTICLE X. RESIGNATIONS, VACANCIES, AND THE MODE OF SUPPLYING THEM, 995. Resignations, to whom made. SEC. 995. Resignations must be in writing, and made as follows: 1. By the governor and lieutenant-governor, to the legislature, if it is in session; and if not, then to the secretary of state; 2. By all officers commissioned by the governor, to the governor; 3. By senators and members of the assembly, to the presiding officers of their respective houses, who must immediately transmit the same to the governor; 4. By all county and township officers not commissioned by the governor, to the clerk of the board of supervisors of their respective counties; 5. By all other appointed officers, to the body or officer that appointed them; 6. In all cases not otherwise provided for, by filing the resignation in the office of the secretary of state. Resignation. To affect a valid resignation, it must be made in accordance with statutory directions where there are such: 1 Dillon on Mun. Corp., sec. 224. If no particular mode is prescribed, neither the resignation nor accept ance thereof need be in writing or in any form of words: Id. With respect to the necessity of an acceptance of a resignation in order to its validity, there is a divergence of the state authorities. The common-law rule required an acceptance: Edwards v. United States, 103 U. S. 471; and the court there say that it will be assumed that the common law prevails in a state in this particular unless the contrary appear. The certainly was not the doctrine of the common law. In England a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. And from this it followed, of course, that after an office was conferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interests might suffer no inconvenience from the want of public servants to execute the laws. See 1 Kyd on Corp., c. 3, sec. 4; Willcock on Corp. 129, 238, 239; Grant on Corp. 221, 223, 268; I Dillon on Mun. Corp., sec. 163; Rex v. Bower, 1 Barn. & Cress. 585; Rex v. Burder, 4 T. R. 778; Rex v. Lone, 1 Stra. 920; Rex v. Jones, Id. 1146; Hoke v. Henderson, 4 Dev. L. 1; S. C., 25 Am. Dec. 677; Van Orsdall v. Hazard, 3 Hill (N. Y.), 243; State v. Ferguson, 31 N. J. L. 107. This acceptance may be manifested either by a formal declaration, or by the appointment of a successor. To complete a resignation,' says Mr. Willcock, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, treating it as vacant:' Willcock on Corp. 239." states wherein it has been decided that the common-law rule does not prevail are: Alabama: State v. Fitts, 49 Cal. 402; California: People v. Porter, 6 Cal. 26. The code commissioners, in speaking of this subject, refer to section 996, and say the first "subdivision treats of an 'incumbent,' and the word 'his' in the third subdivis ion refers to 'incumbent,' so the text here leaves no doubt on the subject." Iowa: Gates v. Delaware Co., 12 Iowa, 405; Nevada: State ex rel. Nourse v. Clarke, 3 Nev. 566; New York: Olmsted v. Dennis, 77 N. Y. 378; Gilbert v. Luce, 11 Barb. 91; Virginia: Bunting v. Willis, 27 Gratt. 144; and in United States v. Wright, 1 McLean, 509. The common-law rule prevails, on the other hand, in Illinois: People v. Illinois, 100 Ill. 332; not so expressly decided, but necessarily consequent upon that decision; Kansas: State v. Clayton, 13 Rep. 523; and Edward v. United States, 103 U. S. 471, and decisons infra, cited therein. In this last case the question was directly presented in this form: Is a resignation complete without an acceptance of it, or something tantamount thereto, such as the appointment of a successor? The court said: "As civil officers are appointed for the purpose of exercising the functions and carry ing on the operations of government and maintaining public order, a political organization it has been accepted: State v. Hauss, 43 Ind. the depositaries of its power to throw off their would seem to be imperfect which should allow 105; Blake's Case, 103 U. S. 227. That the acceptance may be manifested by implication is asserted also in United States Officer cannot resign to avoid service of process: See ante, note to sec. 879. Resignation cannot be withdrawn after Resignation by officer who has not quali. responsibilities at their own pleasure. This fied is abortive: Miller v. Sacramento, 25 Cal. 93. 996. Vacancies, how they occur. SEO. 996. An office becomes vacant on the happening of either of the following events before the expiration of the term: 1. The death of the incumbent; 2. His insanity, found upon a commission of lunacy issued to determine the fact; 3. His resignation; 4. His removal from office; 5. His ceasing to be an inhabitant of the state, or if the office be local, of the district, county, city, or township for which he was chosen or appointed, or within which the duties of his office are required to be discharged; 6. His absence from the state without permission of the legislature beyond the period allowed by law; 7. His ceasing to discharge the duties of his office for the period of three consecutive months, except when prevented by sickness, or when absent from the state by permission of the legislature; 8. His conviction of a felony, or of any offense involving a violation of his official duties; 9. His refusal or neglect to file his official oath or bond within the time prescribed; 10. The decision of a competent tribunal declaring void his election or appointment. Vacancies, generally. In speaking of the section in Treadwell v. Yolo Co., 62 Cal. 563, 568, Judge McKinstry says: "Section 996 of the Political Code defines the vacancies which may thus be filled [by appointment], and declares that such vacancies shall occur only by reason of certain acts or omissions of the incumbent' before the expiration of his term." Subd. 1. Death of incumbent.-"Incumbent" was defined in Miller v. Sacramento Co., 25 Cal. 98, to be an officer who had quali fied and had taken possession of the office-one who had been elected or appointed but who had not qualified is not an "incumbent." Subd. 2. Insanity.-Duties of commission of lunacy: See sec. 997. Subd. 3. Resignation: See sec. 995, and note. Subd. 4. Removal from office.-Duties of officer before whom proceedings had: See sec. 997. See, as to removing officer, Code Civ. Proc., secs. 802 et seq.; and Pen. Code, secs. 758 et seq. Subd. 5. Changing residence.-Under this provision an office becomes vacant, ipso facto, upon the incumbent ceasing to be an inhabitant of the district for which he was elected, or within which the duties of the office are required to be discharged: People v. Brite, 55 Cal. 79. Restrictions upon the residence of officers: See secs. 852 et seq. Subd. 6. Absence from state: See Const. Cal., art. 6, sec. 9, in the case of a judcial officer, and art. 5, sec. 16, of same, in the case of the governor. Subd. 8. Conviction of felony: See Pen. Code, secs. 737 et seq.; and secs. 758 et seq. Impeaching officers: See Const. Cal., art. 4, secs. 16, 17; and Code Civ. Proc., secs. 36 et seq. Subd. 9. Failure to qualify: See ante, sec. 907, and note, as to power of legislature to declare vacant an office for failure of officer to qualify; and sec. 947, as to time of filing bond. The omission to qualify vacates the office so far as the person elected is concerned: Payne v. San Francisco, 3 Cal. 122; People v. Taylor, 57 Id. 620; Hull v. Superior Court, 63 Id. 174; but the incumbent holds over until the qualification of a successor: People v. Whitman, 10 Id. 38. See also sec. 879, and note. Within the meaning of this section the person who is elected to an office but omits to qualify is still an "incumbent:" People v. Taylor, 57 Cal. 620. Subd. 10. Declaring election void: See note to subd. 4. Expiration of term: See sec. 879, and note. 997. Notice of removal, by and to whom given. SEC. 997. Whenever an officer is removed, declared insane, or convicted of a felony or offense involving a violation of his official duty, or whenever his election or appointment is declared void, the body, judge, or officer before whom the proceedings were had must give notice thereof to the officer ered to fill the vacancy. 998. Vacancies in legislature, how filled. empow SEC. 998. Whenever a vacancy occurs in either house of the legislature, the governor must at once issue a writ of election to fill such vacancy. See Const. Cal., art. 4, sec. 12. 999. Vacancies, how filled when not otherwise provided for. SEC. 999. When any office becomes vacant, and no mode is provided by law for filling such vacancy, the governor must fill such vacancy by granting a com |