A hearing in this court was ordered after judgment by the district court of appeal for the third appellate district. That court, speaking through Mr. Justice Hart, had rendered the following opinion:

The foregoing opinion, we think, makes a correct disposition of the legal questions presented by the appeal. The principal, if not the only, reason leading us to order a transfer of the cause was that the court of appeal did not, in its opinion, make any reference to two decisions of this court (Union Sheet Metal Works v. Bodge, 129 Cal. 390 , [ 62 Pac. 41 ]; People’s Lumber Co. v. Gillard, 136 Cal. 55 , [ 68 Pac. 576 ]), which are strongly relied on by the plaintiff as supporting his contention.

It may be conceded that the opinions filed in these cases do tend to sustain the position that an instrument like the one here in suit may be upheld as a good common-law bond, without regard to the statute requiring the giving of a bond. But this view is contrary to that laid down in the later decisions cited by the district court of appeal. In Shaughnessy v. American Surety Co., 138 Cal. 543 , [ 69 Pac. 250 , 71 Pac. 701 ], it was decided that a bond, which recited that it was given in pursuance of section 1203 of the Code of Civil Procedure (an enactment which had theretofore been held to be unconstitutional) could not be enforced as a common-law bond. This was followed by San Francisco Lumber Co. v. Bibb, 139 Cal. 192 , [ 72 Pac. 964 ], which went a step further, and held, in effect, that although the bond may not recite that it was given pursuant to the statute, the fact that it was so given may be made to appear otherwise—as by the fact that it complies with the statutory requirements governing its terms and the time and manner of its execution. The opinion in the Bibb case mentions the further circumstance that the complaint referred to the statute, but we do not regard this as a controlling factor. The character of the bond is to be determined by its terms and the facts surrounding its execution, rather than by the conclusion of the pleader. Applying these tests, the bond here involved is, as the opinion of the district court of appeal shows, the bond required by the statute of 1897, and a recovery cannot be had upon it without alleging performance of the conditions imposed by the statute. If Union Sheet Metal Works v. Bodge and People’s Lumber Co. v. Gillard are in conflict with the views here announced, they must, to the extent of the conflict, be regarded as overruled.

The judgment is affirmed.