Austin, 11 Vt. 447; 34 Am. Dec. 698; Johnson v. Erskine, 9 Tex. 1.

129 The learned justice then refers to certain decisions in other states which might seem to announce a different doctrine, and says that they were based upon bonds which were both joint and several, and he intimates that the liability might be different on the two kinds of bonds.

In People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758, the action was upon a bond which was construed to be the joint obligation of the principal and sureties, and the several obligation of the sureties, so far as regards the amount for which each undertook to be liable. The bond was signed by the sureties, but not by the principal. The opinion in this case was also delivered by Field, chief justice, and it was held that the rule declared in Sacramento v. Dunlap, 14 Cal. 421, was applicable, and that the bond imposed no binding obligation upon the sureties.

In Kurtz v. Forquer, 94 Cal. 91, the action was upon a bond which was alleged to have been executed by two of the defendants as principals, and by the other defendants as sureties. The bond purported to be the bond of all the defendants, but it was in fact signed only by the sureties. It was held that the plaintiff might recover on the bond, and that the cases of Sacramento v. Dunlap, 14 Cal. 421, and People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758, were not in point," because in those cases the bonds sued on were strictly joint, and not several, while in the case at bar the obligation is expressly joint and several.”

In Murfree on Official Bonds the law is thus stated: "A bond purporting to be that of a principal and his sureties joint in form, and only several in recited limitations of the liabilities of the sureties, is absolutely void if it is not executed by the principal. Being a joint bond, his signature was necessary to its validity, for the defects, which can be cured upon their suggestion in the complaint, do not embrace the absence of the signature of the principal obligor. Without his signature the instrument is not his deed. There is no bond of his in which defects can be suggested and cured": Sec. 252.

130 In other states the decisions are conflicting upon the question whether the sureties can be held liable on a bond which purports to be joint and several, but has not been signed by the principal.

AM. 8T. REP., VOL. XL-4

The last case to which our attention is called bearing upon this question, and deciding in effect that sureties may be so held, is Trustees v. Sheik, 119 Ill. 579; 59 Am. Rep. 830. The opinion in the case is an able one, and it reviews quite fully the decisions on both sides of the question. It is said: "We have given the authorities bearing on the question due consideration, and we are not inclined to adopt the view held by the courts, that a bond signed by the sureties without the signature of the principal may not be binding upon those who execute it, as was held in the case cited from Missouri, and other like cases. If the sureties saw proper to bind themselves without the principal executing the bond and becoming bound we think they might do so, and their undertaking is one that may be enforced in the courts by an appropriate action. The fact that the principal obligor in this case failed to sign the bond was a mere technicality which ought not to affect the rights of any of the parties concerned."

On the other hand, the last case to which our attention is called, holding the other way, is a decision by the supreme court of South Dakota in Board of Education v. Sweeney, 1 8. Dak. 642; 36 Am. St. Rep. 767. In this case, too, the opinion is quite able and clear, and, after reviewing at length all the prior decisions on both sides of the question, it reaches a conclusion directly contrary to that reached by the supreme court of Illinois. It is said:

"After a careful review of the authorities and the reasoning upon which they are based we think the better rule is, that an official bond in which the officer is named as principal, but which is not executed by him, is prima facie invalid, and not binding upon the sureties."

It is not necessary here to cite or comment upon the numer ous cases reviewed in the opinions last referred to, as this case clearly falls within the rule declared in the 131 two California cases first cited. That rule is well supported in other states, and we think it should be followed here.

There is a remark made by the supreme court of Michigan in the case of Johnston v. Kimball, 39 Mich. 187, 33 Am. Rep. 372, which we think applicable to this case, and we therefore quote and adopt it: "Our statutes plainly contemplate that the treasurer shall himself be a party to his own official bond; and while we are not prepared to hold that a bond knowingly and intentionally given without his concurrent

liability will not bind the obligors, we are of opinion that where he purports to be obligor and does not sign the bond, there must be positive evidence that the sureties intended to be bound without requiring his signature before they can be held responsible."

Here there was no evidence that the sureties intended to be bound without requiring the principal's signature, but, on the contrary, the evidence introduced as to one of them tended to show that he did not so intend.

It follows that the judgment and order should be reversed and the cause remanded, with directions to the court below to enter judgment in favor of the appellants.

SEARLS, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion, it is ordered that the judgment and order be reversed and the cause remanded, with directions to the court below to enter judgment in favor of the appellants.

HARRISON, J., GAROUTTE, J., PATERSON, J.

BONDS NOT EXECUTED BY SOME OF THE PARTIES.-The principal case presented the question of a bond which, from inspection, appeared to be intended to be executed by a party who in fact never executed it, unless his delivery of the instrument was, in contemplation of law, equivalent to an execution of it upon his part. The person who omitted to execute the bond was the principal therein, and there was no doubt, by his subsequent assumption of the duties of the office and the receipt of the property for the preservation of which the bond was given, he had become personally liable to account for such property, whether the sureties were so liable or not; and it was the opinion of the trial court that, because the principal was liable with and to them to the same extent as if he had actually signed the bond, his omission to do so was not material. In at least four of the states such appears to have been the conclusion reached by their courts: State v. Peck, 53 Me. 284; State v. Bowman, 10 Ohio, 445; Loew v. Slotcher, 68 Pa. St. 226; Trustees v. Sheik, 119 1. 579; 59 Am. Rep. 830.

The very decided weight of authority is in conflict with the view expressed above, and affirms that, when it appears upon the face of the bond that it was intended that all the persons therein named should become parties thereto, whether as principal or as sureties, each surety is presumed to sign upon the implied condition that all the other parties named in the instru ment will also become parties thereto, and that the form of the instrument as thus drawn gives notice to the obligee of this implied condition on the part of the sureties, and, therefore, that he cannot hold them where the bond is not executed in the form and by the parties originally intended, unless he can show a waiver upon their part of any defect in its execution in this respect: People v. Hartley, 21 Cal. 585; 82 Am. Dec. 758; City of Sacramento v. Dunlap, 14 Cal. 423; Allen v. Marney, 65 Ind. 398; 32 Am. Rep. 73; Pepper v. State, 22 Ind. 399; 85 Am. Dec. 430; Sharp v. United

States, 4 Watts, 21; 28 Am. Dec. 676; Guild v. Thomas, 54 Ala. 414; 25 Am. Rep. 703, and note; Johnson v. Kimball Tp., 39 Mich. 187; 33 Am. Rep. 372; Hessell v. Johnson, 63 Mich. 623; 6 Am. St. Rep. 334; Fletcher v. Austin, 11 Vt. 447; 34 Am. Dec. 698.

In some of the cases it appeared that the bond sued upon was joint, and in others the report does not disclose whether it was joint, or joint and several; while in a few instances, where it expressly appeared that the bond was joint and several, the sureties were held not to be found thereby in the absence of its execution by the principal: Board of Education v. Sweeney, 1 S. Dak. 642; 36 Am. St. Rep. 767; Bunn v. Jetmore, 70 Mo. 228; 35 Am. Rep. 425; Russell v. Amable, 109 Mass. 72; 12 Am. Rep. 665. In truth, we do not know of any case which is necessarily inconsistent with this opinion, and which affirms the liability of a surety upon the nonexecution of the bond by his principal, though it is joint and several in form. Perhaps the case of Kurtz v. Forquer, 94 Cal. 91, may be regarded as sustaining this view, and it was certainly calculated to lead the trial court in the principal case to the decision which the appellate court adjudged to be erroneous. In the case in 94 Cal. Judge McFarland undertook to distinguish it from the earlier California cases by declaring that "they are not in point, because in those cases the bonds sued on were strictly joint, and not several; while in the case at bar the obligation is expressly joint and several." He added: "While several persons are named in the body of the instrument as parties thereto, it is not necessarily invalid, as against those who have signed it, because others named have not signed. Such a result would follow where it appeared on the face of the instrument, or by proof, that the person sought to be charged signed upon the consideration that other persons named would also sign. Nothing of the kind appears, however, in the case at bar. The three sureties, who stood on the same footing, did sign the instrument; and it is evident that the signature of the principals, who were already bound by the contract referred to in the bond, were not necessary as a consideration. Moreover, appellants delivered the bond, without the signatures of the principals, to the plaintiff. We think, therefore, that the sureties are liable, so far as this point is concerned." This case, therefore, is not necessarily inconsistent with the rule maintained by the majority of the cases, for they proceed upon the principle that the surety is not presumed to have intended to have delivered an instrument different in form and substance from that to which he affixed his name, but it appeared in the case in 94 Cal. that this presumption had been rebutted by proof that it was the sureties who had delivered the instrument, and having delivered it in its imperfect condition, they were necessarily estopped from alleging that they did not intend it to be so delivered.

MCCONOUGHEY V. JACKSON.

[101 CALIFORNIA, 265.]

MUNICIPAL CORPORATIONS.-THE ALLOWANCE OF A CLAIM BY A BOARD OF Trustees of a MUNICIPALITY IS A JUDICIAL ACT involving the determination of the existence of the indebtedness, and such determination is binding upon its clerk, and precludes him from resisting an application for a writ of mandate to compel him to issue a warrant upon such allowance and claim upon the ground that no indebtedness in fact existed. PLEADING-Mandamus.—A DeNIAL in response to an application for a writ of mandate to compel the issuing of a warrant in payment of an allowed claim that any indebtedness existed in favor of the applicant is a denial of a conclusion of law, and, therefore, is insufficient to tender an issue. PLEADING.-A DENIAL UPON INFORMATION AND BELIEF OF FACTS PECULIARLY WITHIN THE KNOWLEDGE of the defendant is unavailing. Therefore, if it is the duty of the defendant, in his official capacity, to know whether or not an allegation is true, he will not be permitted to put it in issue by a denial under information and belief. MUNICIPAL CORPORATIONS-RESCINDING VOTE OF COMMON COUNCIL.-The legislative department of a municipal corporation may, at any time before the rights of third persons have vested, consistent with the law of its creation and its rules of action, rescind previous votes and orders. MUNICIPAL CORPORATION-RESCINDING ALLOWANCE OF CLAIM.-If a claim is properly presented to the trustees of a municipal corporation and allowed and approved by them, and their action accepted by the claimant, it becomes a valid and binding contract, and can be avoided only for a cause sufficient to invalidate other contracts. PLEADING. AN AVERMENT ON INFORMATION AND BELIEF that an applicant for a writ of mandate to compel the issuing to him of a warrant upon a claim allowed him for expenses incurred in procuring legal services to be rendered for the city that he is a city officer and "interested both directly and indirectly in the pretended contract upon which is based the pretended claim referred to in the complaint herein," without a statement of any facts upon which the conclusion is based or the nature of the contract referred to, cannot rise to the dignity of a defense.

J. S. Callen, Gibson and Titus, and Callen and Neale, for the appellant.

A. M. McConoughey, for the respondent.

366 SEARLS, C. The city of Coronado is a city of the sixth class. M. R. Vanderkloot was president of the board of trustees, and W. H. Jackson was clerk of said city.

In April, 1892, the petitioner filed a claim in writing with the board of trustees for five hundred dollars 267 on account of expenses incurred by him in procuring, at the request of said city, through the board of trustees thereof, counsel and legal services for said city.