fice," without specifying the length of time, was binding for the transactions of one year only. Munford v. Rice was followed in Tyler v. Nelson (14 Grat. 214).

In North Carolina, where the Sheriff's term was one year, a Sheriff was re-appointed and continued to serve for several successive years, retaining the same deputy. At the commencement of the first term, the deputy gave bond for faithful conduct, etc., during his continuance in office." The Supreme Court said: "A deputation of necessity expires with the office on which it depends," and held that the words "during,” etc., should be restricted to the first year. (Banner v. McMurray, 1 Deveraux 218.) The same thing was decided in Thomas v. Sunny (1 Jones' L. 554).

In Curling v. Chalkings, (3 Maule & S., 502), decided in 1815, it was held that a bond given by a collector appointed by the church wardens and parishioners of a certain parish covered any misconduct of the collector while he remained such. Lord Ellenborough said: "I find nothing to show that his appointment is to have an annual commencement or is to terminate at the expiration of the year.) And Le Blanc, J.. pointed out that the collector was not the deputy of any annual officer, and further, that he did not derive his appointment from any annual officer.

In Leadly v. Evans, however, decided in 1824, it was adjudged that the bond of a collector appointed by the church wardens and overseers of a parish, pursuant to an order of the vestry (the church wardens and overseers being annual officers), which was conditioned for his producing to them, "and their successors" a just and true account, did not make the sureties liable for any sum collected after the expiration of a year. (9 Moore, 102.)

Hughes v. Miller (5 Johns, 167), is worthy of much consideration, because the decision in that case has the sanction of the honored name of Chief Justice Kent. There the bond was given to the Sheriff by a deputy, conditioned for the due execution of the office of Deputy Sheriff during his continuance in such office. The Sheriff having taken on himself the office, on the 16th of September, 1801, pursuant to an appointment in August, was reappointed in March, 1803. The defendant pleaded that the Sheriff had sustained no damages in consequence of any act of defendant previous to his taking upon himself the office under his re-appointment in 1803. It was held the plea was no answer to the declaration. The Court said the deputy was equally in office as such after as before the reappointment of the plaintiff; that the deputy had no concern with the renewal of the plaintiff's

commission, so long as there was an unbroken continuation, of the plaintiff's authority.

As we have seen, this view of the question does not accord with that taken by other Courts. But it is enough to say that the bond was not an official bond, and the decision simply interprets a private contract, holding the parties intended the obligors should be bound duriug the time the Deputy continuously acted as such.

In the case before us the bond is an official bond, and an official bond is given for and has reference to a particular official term. (People v. Aikenhead, 5 Cal., 106; Brown v. Lattimore, 17 id., 93). Here there is a recital that the plaintiff "Treasurer" has appointed Cassebohm Deputy, and has required of him to file a bond in a certain sum-which should be referred to the requirement commanded by Section 985 of the Political Code. A Treasurer cannot appoint a deputy to hold for a longer term than his own. If the Treasurer shall be re-elected, and the deputy continue, the retention of the latter by the former may be construed as against the Treasurer to be a reappointment, but the deputy holds his place by virtue of the implied re-appointment, and not under his original appointment. The condition of the bond before us is. "If the above bounden William Cassebohm, shall well and truly execute the duties of Chief Deputy," etc., which naturally and necessarily refers to the appointment he had received.

Counsel for appellant places much stress upon the language used by the Court of Chancery of South Carolina in the Commissioners v. Greenwood (1 Desaussure, 450).

There a Treasurer was re-appointed, but gave no new bond. The Court held that the bond given at the commencement of the first term did not cover his acts during his second administration. In the course of his opinion the Chancellor said: "This cause is altogether different from that of the Deputy Postmaster. He was continued in office under the original appointment by the person who first appointed him." This reference to some cause, the title of which is not given (but which had probably been mentioned by counsel in argument), is not rendered more definite by the argument, for the argument of counsel is not reported. The South Carolina case was decided in 1795, and the case referred to by the Court is probably an English case. If we were permitted an effort to identify the "Deputy Postmaster's case, we should hazard the conjecture that it was Lord Arlington v. Merricke (Temp. Car. II), which Patterson and Williams, in a note to the report of it, say has been con

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sidered a leading case on the subject ever since. (2 Saunders, 414.) Lord Arlington v. Merricke, was brought upon the bond of a Deputy Postmaster, the condition of which recited: "Whereas, the above-named Lord Henry Arlington, Postmaster-General to the King's Most Excellent Majesty, by his sufficient instrument in writing under his hand and seal bearing date, etc., has deputed the above bounden 7 homas Jenkins to be his Deputy Postmaster of the stage of Oxen above said, to execute the said office from the 24th day of June next coming for the term of six months following. Now, if the said Thomas Jenkins, his deputies, servants and assigns, do and shall for and during all the time he the said Thomas Jenkins shall continue Deputy Postmaster of said stage, well, truly, faithfully and diligently do, execute and perform all and every the duties belonging to the said office of Deputy Postmaster of the said stage, then this obligation will be void," etc.

* * *

"For the matter of law Hale (Chief Justice), said that the condition shall refer to the recital only by which the defendant was bound only for six months and not longer; and that for the reason above alleged by Saunders. And of such opinion was the Court; and Tywsden cited a case between Horton v. Day, which is entered in this Court in Mich. 22 Car. 1 Rot. 468 or 498, where in the condition of an obligation it was recited that a Sheriff had appointed the defendant bailiff of a hundred within his county, if therefore the defendant shall duly execute all warrants to him directed that then,' etc., it was adjudged that the words 'all warrants' should be intended to be only all warrants which were directed to the defendant as bailiff of the said hundred, and not other warrants. And so here the words 'during all the time' shall be intended but only during the six months recited in the condition,'

"The reason above alleged by Saunders" is found on the preceding page, where it appears Saunders, as counsel for defendant, argued: "The defendant by the intention of the condition was not to be responsible for Jenkins for any longer time than for the said six months, although the words are that Jenkins during all the time that he shall continue Deputy Postmaster indefinitely shall observe and perform, etc., yet this time, which is indefinite in itself, ought to be construed only for the said six months for which the condition recites that Jenkins was appointed to be Deputy Postmaster, and the rather because Jenkins cannot continue Deputy Postmaster for any longer time than for the said six months, unless he be appointed anew, and have a new deputation for

a longer time. And he said that by the construction which the plaintiff's counsel would put upon it the defendant would be tricked; for it appears that the defendant intended to be bound for Jenkins for the due execution of the said office only for six months; but the plaintiff would have the defendant bound during the whole life of Jenkins, which is unreasonable to suppose."

If Lord Arlington v. Merricke is the case referred to by the South Carolina Chancellor, it certainly, as he remarked, differs from the case before him. It does not, however, sustain the position of appellant in the case at bar.

The cases in which bonds given to individuals or private corporations have been construed, are not authoritative adjudications with reference to the question before us. Such matters are subject of private contract by which the parties may bind themselves in any manner or to any extent, not violative of public policy or positive statue.

The first and second counts do not state a cause of action because they do not allege a defalcation or misappropriation by Cassebohm during the period for which alone the obligors, who executed the instrument sued on, became his sureties.

The judgment of the Superior Court is reversed. The cause is remanded with direction to the Court below to set aside the order sustaining the defendant's demurrers, and to enter an order or orders overruling defendant's demurrer to the complaint as a whole, and overruling the demurrer to the third count of the complaint, and sustaining the demurrer to the first and second counts thereof.

We concur: Sharpstein, J., Myrick, J., Thornton, J., Ross, J., McKee, J.

DEPARTMENT No. 2.

[Filed September 8, 1883.]
No. 7758.

FITCH v. CORBETT ET AL.

THE COURT (THORNTON, MYRICK, and SHARPSTEIN, J.J.):

FRAUDULENT CONVEYANCE.

This action was instituted to set aside a conveyance alleged to have been executed to hinder, delay and defraud creditors, and especially one E. M. Heistand, the plaintiff's

assignor, of her rights as creditor. Actual fraud is averred and found as a fact, and the finding is sustained by the evidence. It is argued that because Mrs. Heistand knew of the fraudulent conveyance that neither she nor her assignee can avoid it. We cannot see that there is any reason in this position, for if she was aware of the conveyance and knew its fraudulent character, it was stiil void, and she has done nothing by which her right to proceed to annul it for fraud has been waived or given up. If she knew the character of the conveyance she knew that it was fraudulent, and by consequence void. (Carter v. Castleberry, 5 Ala., N. S. 279.) Nor did she waive any right by settling with Corbett for $7,500. How the settlement of the 3d of July, 1878, purged the fraud we cannot conceive.

The counsel for appellants is mistaken in viewing this case as a mere voluntary conveyance to the wife without actual fraud, and as only constructively fraudulent against existing creditors. It is as we have said above, a case of actual fraud alleged, established and found.

We have examined the errors of law assigned and find none of them maintainable.

Judgment and order affirmed.

IN BANK.

[Filed October 26, 1883.]
No. 10,888.

EX PARTE FLOOD ON HABEAS CORPUS.

HOUSE OF CORRECTION-SENTENCE. The Superior Court of San Francisco has jurisdiction to sentence a defendant convicted of grand larceny to the House of Correction, instead of to the State Prison.

ID. The Act in relation to the House of Correction of the city and county of San Francisco, has not been repealed. (Stats. 1877–8, p. 953.)

Habeas Corpus.

MCKEE, J., delivered the opinion of the Court:

In the Superior Court of the city and county of San Francisco, the petitioner, having been convicted of the crime of grand larceny, was sentenced to imprisonment in the House of Correction of said city and county for the term of three years. The sentence was imposed under the provisions of a statute passed April 1, 1877, entitled "An Act in relation to the House of Correction of the city and county of San Francisco." (Stats. 1877-78, p. 953.) By