Appeal from the District Court of the Tenth Judicial District, County of Yuba.

This is an action upon the following bond:

“ Know all men by these presents, that I, George H. Beach, am held and firmly bound unto John T. McCarty, his heirs, executors, administrators, and assigns, in the penal sum of three thousand dollars, lawful money of the United States, for the payment of which, well and truly to he made unto the said John T. McCarty, his heirs, executors, administrators, and assigns, I bind myself, my heirs, executors, administrators, and assigns, firmly by these presents. Sealed with my hand and seal, this fourteenth day of March, a. d. 1854.

“ The condition of the above obligation is such, that whereas the above bounden Geo. H. Beach did, upon the thirteenth day of March, a. d. 1854, bargain, sell, and convey unto the said Jno. T. McCarty, for the sum of twelve hundred and fifty dollars, that piece or parcel of land situate in the city of Marysville, Tuba county, California, and known and described upon the map of said city as part of lot six, (6,) block four, (4,) range E., viz.: that portion situate on D street, commencing on the west side of D street, at a point one hundred and twenty-three (123) feet southerly from the north-east corner of said block four, (4;) and running from thence northerly, on the line of D street, twenty feet; thence at right angles, westerly, eighty feet; thence at right angles, southerly, twenty feet; thence at right angles, easterly, eighty feet, to the place of beginning on D street; and whereas said property is now mortgaged by said Beach, in connection with adjoining property, to Henry Ryman, for the sum of twenty-five hundred dollars, now if said Beach shall have said mortgage satisfied and released as to said property sold said McCarty, above described, or all liens or mortgages upon said property sold to said McCarty, above described, satisfied and released, within four months from the date of these presents, then the above obligation is to be void, otherwise to remain in full force and virtue, in law and equity.

“ G. H. Beach, [l. s.]

“ The above interlineation made before execution.

“ Witness: H. Levy.”

The complaint sets forth the sale and conveyance, by the defendant to the plaintiff, of the property described in the bond, for the consideration of §1250; that previous to such sale and conveyance, the property sold had been, in connection with other property, mortgaged to one Henry Ryman, by the defendant, to secure the payment of his promissory note of $2500; that the defendant executed the above bond, a copy of which is annexed to the complaint; that the defendant has not, at any time, released, or caused to be released, from the lien of said mortgage, the property so sold to the plaintiff, and has not paid, satisfied, or released, said mortgage, but has neglected the same, and has suffered Ryman to foreclose his mortgage, and to obtain a decree for the sale of the said property to satisfy the said note; and that under said decree the property was sold and no redemption made from the sale, and that a sheriff's deed was in due time executed and delivered to the purchaser, whereby the property purchased of the defendant has been wholly lost to th e plaintiff, together with buildings and improvements—placed npon the same by the plaintiff after his purchase—of the. value of $800, whereby an action hath accrued to the plaintiff to recover of the defendant the amount of the bond—$3000—and the value of the improvements. The complaint concludes with a prayer for judgment for $5000 damages, etc.

To the complaint, the defendant demurred on fifteen grounds. The demurrer was sustained, and final judgment rendered thereon for the defendant. From this judgment, the plaintiff appealed. On the argument of the appeal, the defendant relied only upon two grounds to sustain the demurrer: first, the want of any averment in the complaint of a consideration for the bond; and, second, the want of any averment of special damage.