Hill

The plaintiff was sheriff of the county of Tulare, and in January, 1923, appointed Charles R. Hurst as a deputy acting as undersheriff, and required him to give a bond for the faithful performance of his duties. A bond reciting that “We, Charles R. Hurst, as principal, and New Amsterdam Casualty Company,” etc., “as surety, are held and firmly bound,” in the sum of one thousand dollars, was executed by the defendant, and delivered by Hurst to the plaintiff without execution by him as principal. The bond was not approved by a judge of the Superior Court, or recorded.

Hurst misappropriated moneys coming into his hands as undersheriff, and this action was brought to enforce the obligation of defendant as his surety. Judgment was rendered in favor of plaintiff, from which the defendant appeals.

In the title of this action as originally filed plaintiff was named as “R. L. Hill, Sheriff of Tulare County,” the designation being dropped in the amended complaints. As the gravamen of the action stated in the original complaint, and all of the amended complaints, was a defalcation of the deputy which was made good by the plaintiff, the action was properly in plaintiff’s individual, and not…