Omaha daily bee., 1902-06-05

such bond lie filed in due time and is APP
proved.
Approval OF a bond in such case and
waiver Of the forfeiture by permitting the
principal to continue in and -y:d the ofice
Is SUFFICIENT consideration for the undertake
Ing Of additional sureties who sign after
hling but. before. approval for the purpose
Of pT S6g5 ss5 such n S ggYI 7 ab but W Sheei II
after delivery II Is altered by the addition
Of further s%ureties and again delivered
which viii take effect as such from the
date Of the last delivery.
Addition OF further sursties upon the
out the consent or knowledge OF the orig
inal %sureties thereon. Is a material alteTa-
inal sureties.
"a waiver is an intentional ~relinquish-
lent of known rights. and except In case
Oh waiver OF forfeltures requires either con-
sideration or the elements Of estoppei.
Nay Rntify Alteration.
A material alteration already made may
pc ratified and adopted subsequently, and
IN such case the instrument as altered will
1t seems that such ratification. does not
require. a new consideration, but II must
be made Intentionally with respect to the
very alteration. relied on as a defense.
Suretles upon an official. bond which has
been delivered but not yet approved, who
principal retained in his office, may to that
end ratify and adopt generally all altera-
SrSRs S %ni'h r ' nsy S eho Tsaui To 40 5G 50 9 and p eE-
pressly agree to remain bound notwith-
standing their knowledge OF the exact, con-
dition ct the bond when they so agreed, be-
comes immateriaE.
A writ in waiver Of alteration of a bond
By the original sureties thereon. Imported
on its face that the bond was incomplete
and undeiivered II was in form a con.
might be procured in the future, but also
contained & provision that the original
sureties ARE held as II said names had not
that whether additional sureties sign the
bond before or after It's execution of the
waiver was immaterial, since ~ II the
bond was, as the paper indicated. incom-
plete and undelivered the surettes might
cepted' wbether there had been an siteTa-
ton or not, and ~ the fair Interpretation
Of the instrument is that the %sureties not
any further names that might be procured
until the bond was satisfactory to the state
and was approved, but also ratified and
adopted generally any and all alterations by
addition of other names that had been
made at the time they executed such
Where the ofHcial bono of a state oficer
has been fled but not approved and the
%sureties on such bond. in order to procure
principals ONCE, ratify and adopt an alter
alton made by adding other sureties after
II a consideration were TO be held neces-
sary, ar. the ~sureties remain bound.
A pleading drawn and filed by the at
ing been introduced in evidence as an adj
mission II Is competent for him TO testify
and fled sHe'' same for the purpose of eS.
planning ii and depriving 1t of It's apparent
Books and records kept by a state treas
iurer and statements made by HIM and
filed In the Office of the auditor are prima
facie evidence Oybi pee against the sHretieS upon
however, nor are the sureties confined "a
impeachment of such books, records and
as to when the defalcation occurred and
the amount thereof In any way and by any
testimony by which any other fact may be
= IN view of the several decisions in this
tcase the sole remaining issue is whether
Occurred during the last term or in whole
or in any part during his first term of of
'fiee and II such defslcation occurred dur.
ing his last term the defendants are liable
PORTION Sfl the Opinion. .,
In the course OF the opinion Judge Pond
says:
Taking up the cause on its merits w
have first to consider the defense of the
stated 't theirs Contention %19n tasnG is t tfhsttt the RRe'e coyns ia,
GRAFTON of the bond was that the principa
be enabled torenter upon his office anC
receive the benefits thereof, that the of
fieial bond of the state treasurer becomes
effective from the time when IT is filed with
the secretary of state and that as the bonC
in suit had been SO filed for several day
prior to thsxtime when they signed II an,
was a complete and binding obligation al
ready by virtue whereof. as this court ad
Judged on the second hearing and the peti
ton alleges, BARLEY was already in office
there was no nsldera ton for their under
taking. The bond OF the state treasurer II
governed BY different rules from that of
county treasurer. In the latter case there
is a statutory warrant for demanding anc
taking additional sureties at any time. bu'
in the case at bar a bond such as is re
quired by the statute in every way, excep
that IL had not been approved, had beer
executed and delivered already. There wal
a statutory bond which had been effective
FOR several days and upon which the sure
ties we're holden, at least II the state chos'
to dispense with the requirement that II b.
approved. Consequently We are disposed L
concede that under the evidence now be
fore us the undertaking of the additions
~sureties required a new consideration. Thi
must be so whether we admit that tn,
original bond required a consideration O
not. II the contention of counsel as to tn,
consideration OF the riglna bond wer,
correct II would certainly follow that tn
undertaking OF the additional sureties en-
tered into after delivery was collateral an,
would require a further consideration 70
its support.
II you wish to be always satisfied. orde
no other ChampaRne than Cooks Imperia