Omaha daily bee., 1902-06-24
SUPREME COURT SYLLABi.

l22ll State against Paxton. Error from
Douglas. Reversed and remanded. Pound,
/. The rule that a decision OF this court
Is the law Of the case, not only as to the
points expressly considered In the opinion,
bus as TO all matters necessarily involved
I'm the Judgment rendered, has not the
same application where the evidence at
successive trials OF the same cause is so
materially different as to AFFECT the con-
illusions reached
2. Where the evidence at a new trial is
fercnt from that at a trial already reviewed
by, this court, in a subsequent, review IL
Will investigate the record uninfuenCed by
the former decision except so far as ques-
lions of law were. there .adiudicated which
3. a bond executed pursuant to and in
substantial conformity with the provisions
consideration to support It.
4. An undertaking not within the pur-
view OF the statute may nevertheless he
upheld as a common law contract IL other
wise UNDERSTANDABLE and supported by a
consideration.
5. Under section Is, chapte- <. Compiled
Statutes. an official bond must be approved
as well as executed and filed within the
come before films. and neglect to procure
approval of the bond renders the office
though the bond is duly executed and filed.
g. While approval Of the Official oond Of a
state officer is not necessary to its validity
as against the sureties thereon. but, as il
is for the benefit of the public. may be
waived; yet this waiver is Tor the state to
MANY dllu Ait hllduALbll atu llllllk U a
bond without approval does not preclude
the. state. from claiming a forfeiture under
said section Is, chapter X, Compiled Stat
1 The governor, not the secretary of
state, Is to approve the bond of a state
treasurer: Hence, so far as the state is
concerned the filing of a treasurer's bond
by the secretary of state before it has been
approved by the governor, does not dis
pense with the necessity Of approval
s. Unless and until the state declares
comes effective as against the principal
and s%ureties, from the time Of delivery to
whether II is approved or not,
8. The approval of such pond after in
S clarity" W SftSie t the p2 irSrsSi Of 5f Section sn + 5Tre "a
chapter X. Compiled Statutes. and has no
effect upon its validity.
filing, quaere, whether the approval may
not be said to relate back to the time of
neglect to procure approval in the time
IL. 1t seems a proper construction OF sec
ton 10, chapter x, Compiled Statutes, that
the forfeiture therein provided is not in
CURED by failure to procure approval OF an
vided such bond is filed in due time and is
Is. Approval of the bond in such case and
waiver of the forfeiture by permitting the
principal to continue in and hold the office
Is sufficient consideration for the under
taking of additional s~ureties, who sign
after filing, but before approval, for the
purpose of procuring such approval and
is. A bond can be delivered but once. If
after delivery 1t is altered by the addition
there is in effect a delivery Of a new bond
which will take. effect as such from the
date of the last delivery.
IA, Addition Of further sureties upon a
bono after its execution ara delivery, with
inal sureties thereon, IS a i%nsteriai aitera-
ton thereof, which will release such orig
inal sureties.
is. a waiver is an Intentional relinquish-
ment of known rights. and. except In case
of waiver Of forfeiture, requires either
Is. A material alteration, already made.
may be ratified and adopted subsequently,,
tered will be binding.
II. 1t seems that such ratification does
must be made intentionaIi ipe with resp SGt TO 10
the very alteration relied on as a defense.
IS. Sureties upon, an official bond which
who desire to nave the bond approved and
the principal retained in his Office, may to
alterations which may be required for the
purpose, and If they choose to do so and
standing their knowledge Of the exact con-
ditlons of the bond when they so agree
10. A written waiver of alteration of a
bond by addition OF further sureties, eX-
ecuted by the original sureties thereon,
complete and undelivered. 1t was in form
a consent to the addition of any names
that might be procured in the future, but
also contained a provision that the orig
inal s~ureties ARE held as II said names
waiver. held, that whether additional sure
ties signed the bond before or after execu-
G5 If the bond was, as the paper indicated
incomplete and undeilvered the %suretIes
accepted, whether there had been an al
~teration or not, and C) the fair interpreta-
ton OF, the instrument Is that the sureties
Of any further names that might be pro-
cured un4l the bond was satisfactory to
fled and adopted generally any and ali al
terations by addition of other names that
mad been made at the time they executed
20. Where the oficial bond of a state OFF,
Ger has been filed, but not approved. and
cure it's approval and prevent forfeiture Of
the principals, once, Iatify and adopt an
after delivery, there is a consideration
thereof, II a consideration were to be held
21. A pleading drawn and filed by the at
torney general on behalf of the state hav-
ing been introduced in evidence as an ad-
mission, 1t is competent for him to testify
TO the theory OF law upon which he drew
and hlee the same, for the purpose OF ex.
70. Books and records kept by a state
tire asurer and statements made by him and
filed in the Office OF the auditor are prima
facie evidence against the sureties upon
however, nor are the ~sureties confined to
impeachment of such books. record and
| statements Out lnCy may SNOW the IdCtS
as to when the defalcation occurred and
the amount thereof In any way and by any
testimony by which any other fact would
be established.
23. In view OF the several decisions in this
cause the sole remaining issue is whether
tire defalcatior of the principal I'm the bond
occurred during the last term or in whole
or Part during his first term OF ONCE, and
II such defalcation occurred during his last
term the defendants are liable therefor.
1882. Austin Manufacturing Company
against County OF Brown. Error from
Brown. Reversed. Kirkpatrick, c. Divi-
sion No. 1.
chapter xviii, article ], Compiled Statutes,
1899, II is not unlawful for a county board,
after estimate made and prior to It's meet
ing as a board of equalization, 10 antici-
pate the levy for the current year ana con-
tract an Indebtedness upon a particular
fund within the estimates, although there
is at the time no money in the treasury to
the credit OF such fund for the payment of
the indebtedness, II in contracting such in
debtedness the board remains within the
limits prescribed by the constitution and
the statutes.
2. In an action against a county TO re-
cover the purchase price OF certain road
machines which have been received and
retained by the county, an answer which
alleges that at the time the contract of
purchase was made there was no money In
The treasury to the credit OF the proper
Iupd for the paVmeut of the aame falls IN