
    No. 8,852.
    Department Two.
    January 10, 1885.
    MATTHEW NUNAN, Respondent, v. GIDEON M. BERRY et al., Appellants.
    Principal and Subbty—Death of Principal— Discontinuance of Action.— An action on a bond against the principal obligor and his sureties, after the death of the principal, before service of summons on him, may, on motion of the surviving defendants and consent of the.plaintiff, be discontinued as to him, and allowed to proceed against the sureties.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
    
      The facts are stated in the opinion of the court.
    
      G. F. & Wm. H. Sharp, for Appellants.
    
      McAllister & Bergin, for Respondent
   The Court.

Action on a bond. Nunan was sheriff, and he appointed Berry deputy sheriff and book-keeper. Berry executed to Nunan a bond, with the other defendants as sureties, conditioned for the faithful performance of his duties, and for the accounting and payment to Nunan of all moneys collected by Berry as deputy sheriff and book-keeper. The penalty of the bond was $10,000.

After the commencement of the action, but before service of summons on him, Berry died, and when the cause came on for trial, on motion of the attorney for the surviving defendants— the sureties—as appears by the statement, the action was discontinued as to Berry, plaintiff consenting. We see no error in this of which the defendants can complain.

The court found that Berry received ten thousand dollars and upwards, by virtue of his office, which he failed to pay over, and rendered judgment for plaintiff for $10,000, the amount of the penalty of the bond, with interest at the rate of seven per cent, per annum.

We have examined the various points presented by appellants, but do not think them of sufficient importance to be considered at length. We think the evidence sufficient to sustain the findings, and that the rulings of the court were correct.

Judgment and order affirmed.

Hearing in Bank denied.  