The Montgomery advertiser., 1903-11-24
FULL TEXT OF OPINION OF JUDGE
 SHELBY IN MONTGOMERY COUNTY CASE

Clerk. United States Circuit Ccuri
 of Appeals. Fifth Circuit. Novembe, term, 1908. No. 1zos. County oi Mo4teomery, plsintfff in error. vs,
 John J. Cochran, ct al, defendants
 h. error; and John J. Cochran. ct al..
 cross plaintiffs in error, vs. County
 of Montgomery. cross defendant in error.
 Error and cross error to the Circuit
 Court of the United States. for the Middle District. of Alabama.
 wm. L. Martin; John G. Finley. Jesse ss> F. .Stailings.. for plaintiff in error and
 cross defendant in error. EdEar H. Cans, Thomas A.. wheian. Thomas H. Watts and Alexander t. Troy for defendants in error and
 cross plaintiffs in error.
 Before Pardee, Mccormick and Shelby,
 Circuit judges. Shelby. circuit judge. This case has been tried twice in the Circuit Court. It is before us for the second time on writ of error sued out by Montgomery county. It is an action brought by Montgomery county. Ala. against John J. Cochran and the Fidel- ity and Deposit Company of Maryland. ., corporation chartered under the laws of Maryland.
 On being elected treasurer of Mont- gonery county. Cochran gave bond in the sum of $130.000 co with condition to faithfully discharge the duties of such once, and the Fidelity and Deposit Com pany became surety on his bond. With the approval of his surety. Cochran ap- pointed John P. Kohn, his agent. with full authority to act for him as treas urer in the receipt and disbursement of money. The Legislature of Alabama passed an act to authorize the board of .N a-- <L. &<-a L z- the county for an amount not to exceed $10o,o00 for improving the public roads. The board was authorized by the act to sell the honds.s The treasurer was made responsible for the safe keeping of all the, proceeds accruing from the sale of the bonds which may come into his hands in his official capacity, the same as for other funds or money in his hands as such treasurer. Under other statutes of the State, it was made the duty of the treasurer to receive and keep the money of the county. and disburse the same according to law. And officials bonds are by other statutes made obligatory on the principal and surety thereon for the faithful discharge of any duties which may be required for such officer by any law passed subsequent to the execution of such bonds. although no such condi- ton be expressed therein: and the bond is made to stand as indemnity against "any wrongful act committed under col- or of his ofice as by his. failure. to per- form, or by the improper or neglectful performance of those duties imposed by law"
 Under authority of the act referred to, the board issued s10o.00O of negotiable coupon bonds, payable to bearer, and sold them Jan. 8, 1901, to Josiah Morris & Co, for $1l1 l1.1oe.5s. John P. Kohn was an employe of the banking house of Jo- aish Morris & Company. Charles A. AL len was the clerk of the board which held the bonds and which was author ized to sell them. Seeking to obtain pos session of the bonds, Kohn rendered to the clerk of the board the check of the purchaser of the bonds on the bank of Josiah Morris & Company for the amount agreed to be paid for them. and the clerk declined to receive the check and deliver the bonds. Kohn then left the presence of the, clerk and later returned and presented to him receipt, signed by John J. Cochran. county treasurer. by John P. Kohn, his attorney, dated Jan, 8. 1901, acknowledging receipt from the board of revenue of the county of Sl11. .1os.5s. proceeds sale $1O0.o bonds.''
 On presentation of this receipt, the bonds were delivered to Kohn. who deliv- cred them to the bank. They were sent out of the State and sold. and are out standing against the county. All this oc- cured on the afternoon of the Sth of January. 1901. The check given for the bonds was deposited by the treasurer Jan. 8. 1901, in the bank of Josiah Morris 6 Company and placed to the credit of Cochran as treasurer, who charged him self with the amount of the check on his oflcial account and reports. Seventeen days after these transactions, the bank closed it's doors and remained suspended. Before the bank was closed, on and af- ter, Jan. g. warrants to the amount of s5.76S. drawn by the treasurer. on this fund were paid at the bank. At the time the check was deposited. the amount of cash in bank was about SsS.0oo
 The Circuit Court held on the first trial that these facts did not constitute breach of the treasurer's bond. and directed a verdict for defendant so far as the fund in question was concerned.