The Montgomery advertiser., 1903-11-24

amounting to- ssss, ss2s2. about which thers was no controversy.
 The county of Montgomery sued ou a writ of error to reverse this judgment because 1t did not include the proceeds of the sale of the bonds. It was de clded here: (a) That the statute havins provided that the treasurer should bs responsible for, the safe-keeping of all ol
 the proceeds accruing from the sale oi the bonds which came into his hands ir his official capacity, in the same man ner that he was liable for oth. CT county funds or money in his hands as such treasurer that the words proceeds of saie'' and funds of money used in the statute authorizing the bonds to be issued. are not limited In meaning to coin and bank bills. but include any other medium of payment authorised by general usage, and that the treasurer is responsible on his bond where he ac- cepted 2. check given by the purchaser of the bonds and receipted for the same as the proceeds of the bonds: Cb) that the effect of the transaction disclosed by the evidence was the same as though the treasurer had received coin or bank bills from the Board of Revenue as the pro- ceeds of the bonds and had deposited the same, and that he was liable to the coun- ty on his bond as for conversion of the money it being the law of the State that a general deposit of the county funds in a bank by the treasurer is a conversion of the money: (c) and that if it be con- ceded on the facts of the case that the treasurer had no right to accept the check. or that it was found to be worth less, his aceptance of it and his receipt ing to the board for the proceeds of the bonds. by reason of which they were issued and became obligations of the
 snfvr kAA Az a~- lectful performance of duty imposed by law, and that he and the surety on his bond were liable for the loss resulting to the county. Montgomery vs. Cochran, 1M Fed. r.
 The decision on the former writ of error cannot be re-examined now. Whatever has been decided upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent ap- peal brings up for consideration only the proceedings of the Circuit Court after the mandate of this court" Supervisors v. Kennicott. s U. s. 4es. This rule Is equally applicable to the United States Circuit Courts of Appeals. Morgan vs. Johnson. 1o6 Fed. 452; Supreme Lodge vs. Lloyd. 107 Fed. 70: City of Austin vs. Bartholomew, 17 Fed. S49; Board of Com missioners vs. Geer. 1os Fed 47s. The de- cision of this court, therefore, on the first writ of error was the law of the case to control and govern the circuit court on the second trial. This appears to have been fully recognized by the learned trial judge. But the controversy on the second trial was on the question of the proper construction of the former decision of this court.
 On the second trial from which this writ of error is prosecuted there was no ma terial change in the evidence. except that additional testimony was offered to show tho insolvency of the banking house of Josiah Morris & O., in which the treas- urer deposited the funds of the county; and on behalf of the county, the addi- tional fact was proved that the Fideli- ty and Deposit Company of Maryland knew when 1t became the surety of the treasurer that the funds that were to be received by him were to be deposited in the bank of Josiah Morris & Company It was conceded on the second trial that according to the decision of this court, there had been a breach of the treasurer's bond. The point of contention was as to the measure of damages. The defen- dants contended that the measure of damages was the amount which the treasurer. by proper diligence, could have collected on the check which he received and deposited. The trial court sustained this contention, and instructed the jury that the measure of damages was ''the amount which the treasurer could have recovered by due diligence if he had used 1t in collecting the check" '"The issues before you then." added the learned judge. "are. first, having got this check. what could he reasonably have gotten out of 1t if he had been dilligent to collect it next morning when the bank opened? On that branch of the case he and his surety are liable for what he could have col- lected by due diligence, if the whole amount, he would be liable for the whole amount; if any less amount, he would be liable for that because he preached his bond when he put that check on general deposit instead of trying to collect it." Preceding under these instructions. the jury found 8 verdict, and judgment was entered for the county, for only $67,109. .05. The county claimed that after allowing all proper credits the amount due 1t was $s6 6154.5s. and has sued out this writ of error to reverse this last Judgment.
 The trial court wholly inexperienced the decision of this court in concluding that 1t was decided that 1t was the duty of the treasurer to receive it' (the check for S111, .5S for the purchase of the bonds.) It was not decided that he was required by law to receive the check as money. He certainly would not be re- quired to so receive a check he knew to be worthless. He would be guilty of gross negligence if he received a check as money under circumstances that would cause a loss to the county when he had reason to suspect that the check was not good. It Is probable that he would re- ceive any check as money at his peril. We were dealing with the case as pre- sented then and now, and we were of opinion, and so held, that, having receiv- ed the check and receipted for 1t as money. it was funds or money and proceeds of sale'' within the meaning of the act under which the bonds were is- sued, and therefore within the protection of the official bond of the treasurer. The court below on the second trial properly conformed to the opinion of this court in It's. charge that the check was pro ceeds of sale" of the bonds and that the treasurer was liable on his bond for the same, but instructed the jury that the measure of damages was the sum that could have been collected on the check by due diligence. This instruction incor- rectly assumed that the treasurer could. without a breach of his bond, receive and receipt for as money an uncollectable check. And 1t gives no force to the fact that the treasurer deposited the check in bank and received credit as treasurer on the banks books for the full amount of 1t and charged himself as treasurer on his official books and reports with the amount of it. These facts can- not be Ignored. If he had only received the check, and If the facts had stopped there. a question would have been pre- sented on this branch of the case that we are not required to deal with. That the deposit of the check by him in bank was a conversion of 1t is conceded to be the