Omaha daily bee., 1897-10-20
SURPRISE FOR THE STATE
Defense Springs Point Which May Reopen
Suit Against Bartley's sureties.
WAIVER OF ORIGINAL BONDSNsN WITHHELD
They Vow Seek to Plead that They
Are Not Liable Because the
Bond Thcy signed
Was Rejected.

Attorney General Smyth has been out
Unanswered by the counsel for the bonds
men of ex-state Treasurer BARLEY in the
suit he brought to recover from them the
half million dollar defalcation In the state
treasury when BARLEY left it. As a con-
sequence of this there is a probability that
the end Of the trial is yet far distant.
"A new question has been raised It was
expected generally, but apparently not by
Attorney General Smyth, for yesterday
morning he stated that he thought his case
would be concluded in the afternoon. The
question has been argued. 1t depends on
Judge Powell's ruling this morning whe;
or not the trial will be indefinitely pro-
longed-in fact, whether or not practi-
cally new trial will be required. The point
Involves the main issues in the case and
goes back to its commencement
When Barley first offered his bond to
Governor Holcomb on January 3, 1895, the
governor decided that the sureties were not
sufficient, and therefore on the following
day, returned 1t to BARLEY In order to en-
able him to get additional signatures Bart
ley came to Omaha with the bond and Sc
cured TIE names OF w. A. Paxton sr
Thomas Swobe and Cadet Taylor In order
that these names might be rightfully at
tached to the bond an agreement was signed
by the six original bondsmen, according to
which they waived all objection to the add-
tienal signatures. This agreement was at
lached to the bond when it was again Of
fered to the governor.
NO MENTION OF WAIVER.
In the petition which the attorney gem
eral fled against the bondsmen in the suit
that is now pending he based the action crl
the bond itself. as document distinct with
the Watypr nf bn iuip al III,
upon It's face, as set up in the petition the
bond was signed by the sureties at the
same time and under the same conditions.
The bondsmen went Cn the theory that the
attorney general would try the case on the
contention that ii was a statutory bond
that Is, that all the requirements of the stat
utes had been Obeyed In their answer to
the petition. therefore they set UP as the
main defense that the statutory bond was
defective In that it had not been approved
and filed on the first day of Bartley's term
January 3, 1895, as required by the statutes
But as a second and additional defense, mas
much as the waiver of the six original
bondsmen was not held in the petition TO be
part OF the bond, the original bondsmen
set up that they were released from liability
I'm that the bond they signed had been re-
1ected and tnat the names OF Taylor Swobe
and Paxton had been secured without their
consent as additional sureties This placed
the attorney general where he was required
and consequently he was forced to offer the
waiver OF the six original bondsmen to the
securing Of additional signatures on the
bond
When the trial was commenced the de-
tending counsel insisted that the action was
based on two different bonds-the statutory
bond set up in the petition and a common
law bond in the reply. They maintained
mat they were two entirely separate con.
tracts In answer Attorney General Smyth
hnN
up In che petition. On this understanding
he introduced the bond itself without the
waivers. He also failed to introduce in eyi-
dence the written approval Of the bond by the
governor III he had put it in evidence it
would have assisted the defense in showing
that the bond had not been approved until
January 3, 1895, this appearing in the writ
ten approval over the signature of the gov
ernor. This evidence would have been of
material assistance, inasmuch as the defense
wanted to prove two th'ngs-that the bond
should have been approved January 3, 1895.
to be legal. and that 1t was not approved
on that day.
PLEAD LIABILITY OF BOND.
since the waivers were not introduced the
sureties employed only their main line of de-
1ense--tbat the bond should have been ap-
proved on January 3, 1895 and that 1t was
not approved them This being shown the
bcndsmen contend that the office of state
treasurer became vacant and BARLEY never
held the position. This being so again they
argue, that they are released from liability
since they signed the bond of BARLEY as
state treasurer and not of Barley as acting
state treasurer or In any other capacity
ana therefore should not be held responsible
for his dcirgs
The defense has shown that the bond was
not approved on January 3, 1895. They seem
TO have almost convinced the court that 1t
should have been approved on that day for
when Attorney General Smyth was speaking
Inu
of no account and intimated that the court
held with him on that Judge Powell inter
rupted and said
II do not want you to mistake me. / be-
lieve that II is very material whether or not
the bend was approved on January g. 1896"
Under the circumstances. therefore, it was
absolutely necessary for the attorney to de-
stroy the effect OF the defense. He can only
do so by the waivers OF the original bonds
men. By these he can show that the bonds
men knew that Hocomb did not approve the
bona on January 3. 1895, since he did not
give 1t back to BARLEY until the day after
ward to secure additional signatures; that
since they knew this they knew that the
Cflice OF state treasurer was vacant and that
therefore they signed the bond to be re-
sponsible for the acts Of BARLEY even If he
was simply acting in the capacity of state
treasurer
WITHDRAW A DEFENSE.
Attorney General Smyth tried to ntroduc-
Frank Ransom ani John II. Ames objec-
ted because the bondsmen would be
given no opportunity of answering
at this stage Of the trial The
attorney general insisted that the evidence
was proper since the bondsmen had set up in
their answer that they had not agreed to
stay on the bond with additional suretes.
The counsel for the defense maintained that
they had not advanced this defense in the
trial and finally agreed, on a challenge from
Attorney General Smyth, to withdraw this
defense entirely. This felled the props from
beneath the attorney general and he had to
seek in another direction to get the waivers
in. .a
He insisted that they were proper rebuttal
testimony. He said that the contention of
the bondsmen had been that they were re-
leased from liability by showing that the
bond had not been approved at the time fixed
by the statutes, The waivers showed that
they knew that the bond had not been APP
proved at that time, but they had neverthe-