right is to be vindicated, or where an action is necessary to prevent an unjust or illegal claim from ripening into a right by longcontinued possession, and then the court will enforce the right to merely nominal damages. Elliott, App. Proc. § 636; Hibbard v. Telegraph Co., 33 Wis. 558, 569; Meyer v. Huse, 32 Ill. App. 328; Smith v. Machine Co., 26 Ohio St. 566; State v. Miller, 5 Blackf. 381; Jennings v. Loring, 5 Ind. 250; Robertson v. Gentry, 2 Bibb, 542; Watson v. Van Meter, 43 Iowa, 76; Hickey v. Baird, 9 Mich. 32.

The right of the plaintiff in error to enjoy what is common to all, the privilege of grazing his cattle upon the public domain, under the implied license of the government, is not affected by this decision, for that right is conceded to him, and he will not be deprived of such right by the decision of this court. Neither will he lose the right to graze his cattle on that portion of the public domain which is not appropriated, lying within the limits of the tract inclosed, from which his cattle were driven. He has not been damaged at all by the acts of the defendant, as the evidence in the case discloses, and the removal of his cattle from one portion of the public range to another, as he claims, is but a mere technical injury, as he was benefited, and not injured, by such removal. As this injury is not permanent in its effects, and he is in no worse situation that he was before, even if his contention is correct, we will not put the parties to the trouble and expense of a retrial, even if we thought his rights had been invaded by any act of the defendant, upon which branch of the case we have grave doubts, but upon which we express no opinion. For the reason that we ought not to reverse a cause because the plaintiff might be entitled to nominal damages only, where the matter of costs is not affected, and where no rights of the plaintiff need to be vindicated or are imperiled, the judgment of the district court is affirmed.

POTTER, J., being of counsel in the trial court, announced his disqualification, and Hon. RICHARD H. SCOTT, judge of the district court for the First judicial district, sat in his stead.

CONAWAY and SCOTT, JJ., concur.

(5 Wyo. 291)

HESTER et ai. v. SMITH et al. (Supreme Court of Wyoming. May 11, 1895.) ACTION AGAINST FIRM GOODS SOLD TO MEMBER -DECLARATIONS OF PARTNER-ADMISSIBILITY -PROCEEDINGS IN ERROR-PARTIES.

1. Error in not rendering judgment by default against certain defendants will not be reviewed when the record fails to show that they were served with summons in error.

2. A motion for a continuance on the ground of newly-discovered evidence is properly refused where it appears that the evidence could, by the

use of proper diligence, have been procured at the trial.

3. In an action against a firm for the price of oats, it appeared that plaintiff sold the oats to one of the partners, not knowing that he was a member of the firm; that the vendee did not expressly buy for or in the name of the firm; that the firm did not receive the oats; and that the buying of oats was not a transaction within the scope of the business of the firm. Held, that a statement by the vendee, made after the purchase, to third persons, and not in the presence of any member of the firm, that he bought the oats for the firm, was not admissible.

4. In an action against a banking company for the purchase price of oats, it appeared that the plaintiff sold the oats to a member of the firm, not knowing at the time that he was a member; that the vendee did not expressly buy for or in the name of the firm; that the firm never received the oats; that the vendee paid the freight, and the plaintiff subsequently stated that he sold the oats to another firm, of which the vendee was a member; and that the vendee. at the time of the sale, merely said, "We are running a bank here." Held, that the evidence did not show a sale to defendant.

Error to district court, Natrona county; J. W. Blake, Judge.

Action by George W. Hester and others, partners, against Lew Smith and others, as partners, for the purchase price of oats. From á judgment for defendants, plaintiffs bring error. Affirmed in part.

Allen G. Fisher and George Walker, for plaintiffs in error. Burke & Fowler and A. T. Butler, for defendants in error.

POTTER, J. Plaintiffs shipped from Harrison, Neb., in their own name, a car load of oats to Casper, intending them for a purchaser upon whom a sight draft had been drawn, attached to the bill of lading, and sent through the bank of C. H. King & Co. This expected purchaser not taking the oats, George W. Hester visited Casper, and there met Lew Smith, one of the defendants, with whom a sale of the oats was consummated. Smith received them, and paid the freight thereon. Although it does not clearly appear, it seems to be disclosed by the evidence that the oats were taken to a store commonly referred to in the testimony as the "Mercantile Company's Store," the business of which was usually transacted by Smith. He was also a member of the firm of L. Smith & Co., bankers. It is attempted to make the banking firm of L. Smith & Co., of which firm J. B. Okie was also a member, responsible for the purchase price of the oats. The only fact which we find in the evidence at all tending to connect that firm with the purchase is in the testimony of George W. Hester, who says that while he and Smith were discussing the matter of the sale, and before it was consummated, the latter said to Hester, "We are running a bank here," and also: "You will run no risk. You will be safe in your money. You will get your money for your oats." We are unable to discover any testimony showing or tending to show that the banking firm ever received the oats, or any of them, or any of the proceeds thereof, except the sum of $55, which

Mr. Okie testifies was deposited in the bank to the credit of G. W. Hester, and was by Okie (who afterwards, it seems, had assumed the obligations of the bank) paid to Virgil Hester. Okie testifies that Smith informed him this deposit had been made by "the store" to the credit of Hester, but there is no direct testimony covering the matter of the original deposit. Okie testified that, when he paid the $55 to Hester, the latter informed him that they had sold some oats to the mercantile company. There is testimony that statements were made by each of the plaintiffs to the effect that they had sold the oats to the mercantile company, and a witness connected with C. H. King & Co. testified that Hester & Son had at one time drawn a draft on the Smith Mercantile Company for $350, which was received by C. H. King & Co. for collection, and was returned on the same day. The total amount for which, the oats and some sacks were sold was $353. Smith paid the freight ($36.40), which was apparently to be credited on the price, and, with the $55 subsequently received on account of the deposit in the bank, leaves the balance sued for as $261.60. Neither Smith nor Shaffner appeared in the suit below. The defendant Okie filed an answer, denying every allegation of the petition.

The defendant Okie would not be liable unless the firm of L. Smith & Co.. bankers, were, and by reason of his membership in that firm. If that firm was not the purchaser of the oats, then it was not liable. We do not think the court erred in finding said firm not indebted to the plaintiffs. The best construction which can be given to the evidence favorable to the plaintiffs shows a conflict in the testimony; and, there being evidence to sustain the finding, the judgment will not be reversed. Bank v. Dayton, 1 Wyo. 336; O'Brien v. Foglesong, 3 Wyo. 57, 31 Pac. 1047; Ketchum v. Davis, 3 Wyo. 164, 13 Pac. 15. In our opinion, however, there was not sufficient evidence to establish the liability of the firm of L. Smith & Co. Plaintiff's failed to connect them with the purchase made by Smith.

It is urged that the court erred in not taking the default of Smith and Shaffner, and rendering judgment against them. So far as Shaffner is concerned, his liability, like that of Okie, depends upon the establishment of an indebtedness from the firm. The parties are not in a position, however, to successfully urge this point, even if error was committed in the respect indicated, upon which we express no opinion. Neither Smith nor Shaffner are before this court, no summons in error having been served upon them for all that appears by the record.

It is contended that the court committed error in refusing to grant a new trial on the ground of surprise and newly-discovered evidence. The affidavits filed in support of the motion to sustain these grounds utterly fail to show any such surprise as would require the court to grant a new trial. The alleged new

ly-discovered evidence consisted of certain letters said to have been signed, "L. Smith & Co.," which were in the possession of the attorney who brought the suit for plaintiffs, but did not represent them at the trial, and certain facts which Virgil Hester, one of the plaintiffs, would testify to, to rebut the testimony of one of the witnesses for the defendants, and other facts which G. W. Hester would testify to by way of rebuttal. It is also alleged in the affidavits that three persons who were not witnesses at the trial will testify that Mr. Smith had told them that L. Smith & Co. had bought the oats in question. One of the statutory grounds for a new trial is newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. It is not shown that the evidence could not have been discovered before the trial with reasonable diligence. No showing in that respect is made. The statement that the plaintiffs first learned the same after the trial does not show diligence. It only establishes the fact that it is newly-discovered testimony. This is in itself sufficient to dispose of this assignment of error; but another requisite is attached to this ground for a new trial, and that is, the evidence must be material. It must be competent. It has been held by this court that, if it is merely cumulative, it will not be sufficient. Link v. Railway Co., 3 Wyo. 679, 29 Pac. 741. So far as the letters and the testimony of Virgil Hester and G. W. Hester are concerned, it is clear that they could, by the use of proper diligence, have been procured at the trial. The declarations of Smith made after the sale had been consummated, in the absence of any other evidence showing or tending to show that the firm of L. Smith & Co. had bought or received the oats, such a transaction not ordinarily being within the scope of the business of a mere banking firm, and nothing appearing to show that this firm ever engaged in such business, we do not think would have been admissible. Heffron v. Hannaford, 40 Mich. 305; Uhler v. Browning, 28 N. J. Law, 79; Thorn v. Smith, 21 Wend. 365. Mr. Hester testified that he dealt with Smith. He knew nothing about the firm. Smith, in the transaction, did not expressly deal for the firm or in the firm name. Under such circumstances, together with the fact that the firm did not receive the subject of the sale, to admit in evidence, as against a partner, the declarations of the individual purchaser that he bought them for the firm, made after the purchase, to third persons, in the absence of his partner, would, in the language of Judge Nelson in Thorn v. Smith, supra, "enable a partner at any time to turn all his individual liabilities upon the partnership." This evidence, then, would not be competent, and therefore not material..

This disposes of all the questions raised by counsel. The case now here is practically between plaintiffs and the defendant Okie. The

B. Okie and L. Smith & Co., bankers, as a partnership, is affirmed.

GROESBECK, C. J., and CONAWAY, J.,

concur.

(4 Idaho, 468)

STATE v. McDONALD et al. (Supreme Court of Idaho. May 11, 1895.) DEMURRER-ACTION ON OFFICIAL BOND-FAILURE OF PRINCIPAL TO SIGN-RECITALS - COLLECTION OF LICENSE TAX-ITEMS OF DEFALCATION-JUSTIFICATION OF SURETIES.

1. The omission of the sheriff to sign his official bond did not release him from any liability arising under the conditions of the bond, nor did such omission release the sureties.

2. The failure of the sheriff to sign such bond (it being joint and several) did not invalidate the bond.

3. The surety is estopped from denying any fact recited in the bond, when by such denial he seeks to avoid the bond in an action between the parties to the bond.

4. The collectior of licenses is made the duty of the sheriff by law, and the bond sued on is conditioned on the faithful discharge of all duties required of him by law.

5. In a suit of this kind it is not necessary to state in the complaint the various items of defalcation separately.

6. In an action on a joint and several bond, all or any of the sureties may be sued.

7. The fact that a surety did not justify will not release him from liability, if the bond has been accepted without such justification.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; J. Holleman, Judge.

Action by the state of Idaho against Scott McDonald and others on a sheriff's bond. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed.

George M. Parsons, Atty. Gen., for the State. Hagan & Beale and W. W. Woods, for respondents.

SULLIVAN, J. This is an action to recover on an official bond. One Richard A. Cunningham was elected sheriff of Shoshone county on the 1st day of October, 1890, and on November 26, 1890, filed his official bond. Thereafter a question was raised as to the validity of his acts as sheriff, on the ground that he had failed to qualify as sheriff within 30 days after his election. To avoid any complications that might in the future arise by reason of that fact, Cunningham was appointed sheriff of said county by the governor of the state, and on the suggestion of the board of county commissioners he filed another bond, on the 18th of March, 1891. Said bond was duly approved by said board. Subsequent to the filing of said bond, the said sheriff collected and received for licenses $7,303.05, and also collected for the use and benefit of said county fees in civil cases amounting to $754.75. No part of either of said sums has he ever paid to said county or to the state of Idaho. The complaint alleges the entry of said Cunningham into said sheriff's office, his giving

moneys, and his failure to pay the same over as required by law or at all; and prays for judgment against the bondsmen for the sums so collected, with interest and costs. To the complaint several demurrers were interposed, one of which was joined in by several of the defendants, and others by separate defendants. The court sustained the several demurrers. Thereupon the plaintiff refused to amend, and judgment was entered dismissing the action, and for costs against the state. This appeal is from the judgment.

The first point made by the demurrers is that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges the election and appointment of the said Cunningham to said office. and his entry upon the duties of said office; also that he gave an official bond conditioned upon the faithful performance and discharge of all duties required of him by law as such sheriff, with the defendants as sureties there. on; that as part of such duties he collected certain license taxes and fees, which belonged to the county and state, and failed and refused to pay the same over as by law required. The complaint states a cause of action, without ambiguity or uncertainty.

It is contended by respondents that section 396, Rev. St. provides that the bond must be signed by the principal and at least two sureties, and, as the bond sued on was not signed by the principal, it is void for that reason. The bond recites the fact that said Cunningham, as principal, and the defendants, as sureties, are jointly bound unto the state of Idaho, etc. The omission of the principal to sign the bond did not release him from any liability arising under the terms of the bond, nor would such omission release the sureties. The failure of Cunningham to sign as principal does not invalidate the bond. People v. Slocum, 1 Idaho, 62; Kurtz v. Froquer. 94 Cal. 91, 29 Pac. 413. A fact which must be borne in mind is that the bond is joint and several.

The bond sued on recites that Cunningham was elected, when it is contended it was given in pursuance of the appointment of the gov ernor. The misrecital in that regard (if it is a misrecital) is not sufficient to avoid the bond and release the sureties. The clear intention of the sureties was to give a bond for the faithful performance of all duties required of Cunningham as sheriff, and they cannot escape liability by such a trivial technicality as that mentioned. And further, the plain rule of law is that the surety is estopped from denying any fact recited in the bond, when, by such denial, he seeks to avoid liability in an action between the parties to the bond. Murfree, Off. Bonds, § 133, and authorities there cited; also, Id. § 9; Bigelow, Estop. (4th Ed.) p. 355, note 5, and Id. page 361, notes 3, 4; People v. Love, 25 Cal. 521.

The next contention is that the bond was given on Cunningham's behalf as sheriff, and

not as license or tax collector. The law makes it the duty of the sheriff to collect and pay over county and state licenses. Rev. St. § 2157. The bond is conditioned on the faithful performance and discharge of all duties required of the sheriff by law. There is nothing in this contention. Murfree, Off. Bonds, § 193.

The complaint clearly indicates that this action is upon the bond filed March 18, 1891. There is nothing in the point made by the demurrer as to misjoinder of causes of action. The several items of defalcation need not be separately averred. 1 Estee, Pl. & Prac. § 560.

The fourth cause of demurrer is that there is a misjoinder of parties defendant. It is claimed that the defendants did not each obligate themselves in the same sum, and that the defendants Monk and Desaulnier did not bind themselves in any sum. To this contention it is sufficient to say the bond is joint and several, and therefore the action may be maintained against all jointly or against each severally. People v. Stacy, 74 Cal. 373, 16 Pac. 192. The fact that a surety fails to justify does not release him from liability, if the bond is accepted without requiring him to justify. Taylor Co. v. King, 73 Iowa, 153, 34 N. W. 774. The judgment of the court below is reversed, with instructions to overrule the demurrers, and to proceed with the case. Costs against the respondents.

MORGAN, C. J., and HUSTON, J., concur.

(4 Ariz. 331)

MARICOPA COUNTY v. OSBORN. (Supreme Court of Arizona. May 13, 1895.) APPEAL BY COUNTY-REview - MOTION FOR NEW TRIAL-COUNTY RECORDER-FEES-TAX SALE TO STATE-TERRITORIAL LEGISLATURE-LENGTH OF

SESSION.

1. A county may appeal without executing a bond to the appellee.

2. A motion for a new trial not made a part of the record by the bill of exceptions will not be considered on appeal.

3. A county recorder cannot recover from the county fees for filing and recording tax certificates and tax deeds to lands sold to the territory for delinquent territorial and county taxes.

4. Rev. St. U. S. § 1852, as amended December 23, 1880, limiting the sessions of territorial legislatures to "sixty days' duration," means 60 consecutive days from the beginning of the session. 23 Pac. 680, overruled.

5. A bill cannot be passed by the legislature nor approved by the governor after the 60 days allowed by Rev. St. U. S. § 1852, for the session of a territorial legislature.

Appeal from district court, Maricopa county: before Justice R. E. Sloan.

Action by Neri Osborn against Maricopa County. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff sought to recover from the county $1,818.55, for services as county recorder in filing and recording certain tax certificates and tax deeds to lands that had been

struck off to the territory for delinquent territorial and county taxes, claiming that such fees became a charge against the county by virtue of an amendment to Rev. St. § 2710, passed by the Fifteenth legislative assembly on April 2, 1889. The Fifteenth legislative assembly convened on January 21, 1889, and adjourned on April 10, 1889, being in actual session but 48 days. See 23 Pac. 680. Rev. St. U. S. § 1852, as amended December 23, 1880, restricts the sessions of territorial legislatures to "60 days' duration." Plaintiff recovered judgment for $809.65.

Millay & Bennett, for appellant. Fitch & Campbell, for appellee.

HAWKINS, J. Action by appellee to recover $1,818.55, for services as county recorder in filing and recording certain tax certincates and tax deeds to lands that had been struck off to the territory for delinquent territorial and county taxes. Judgment was recovered for $809.65 against appellant. Appellee moved to dismiss the appeal, for the reason the appellant filed no appeal bond, as required by the statute. The statute does not say in direct terms that a county may appeal without giving bond to appellee. It does say that the territory may do so. A county is a political subdivision of the territory, and may sue and be sued. It does not have to file an appeal bond in order to maintain its appeal. The motion to dismiss is denied.

Appellee also raises the question that the motion for new trial was not embodied in a bill of exceptions, and the points therein contained cannot therefore be considered in this court. We think this point well taken, and we cannot consider ahy question in the case not apparent upon the face of the record. Upon this point this court has repeatedly so held. Sutherland v. Putnam, 24 Pac. 320; Snead v. Tietjen, Id. 325; Gila R. I. Co. v. Wolfly, Id. 257.

The only question for us to consider in this case is, does the complaint state facts sufficient to constitute a cause of action? It does not. The county is not interested in the deeds and certificates filed and recorded by the appellee. They were made by the tax collector under the law to the territory. It then became the duty of the county recorder (paragraph 2703, Rev. St.) to record the deeds to the territory without charge to the county. Paragraph 2710, Rev. St., provides the mode by which the county collector and the county recorder get their fees for the class of services sued on in the action at bar. There is no other. The board of supervisors (under paragraph 2709, Rev. St.) become the agents of the territory in the disposition of all real estate held by the territory under the tax deed for the collection of the total taxes, penalties, and costs, including the unpaid charges of the collector and recorder. When so collected by said board, the money is all paid by them to the county treasurer, and he (the

is due the county collector and the county recorder, and distributes and credits the balance to the funds entitled thereto. It is readily seen that under no circumstances can the county be held for such fees of the collector and recorder.

Appellee, in his complaint, however, claims that his fees became a county charge, under paragraph 2710, Rev. St., "as amended by the act of April 2, 1889." This act never became a law, for the reason that it was not signed by the governor; nor was it returned to the legislative assembly with his objections, and passed over his veto; nor did it remain in his hands 10 days during the existence of the legislature. The Fifteenth legislative assembly of Arizona convened on the 21st day of January, 1889. The 60 days' duration allotted it by congress expired long before this act purports to take effect. Territorial legislatures are limited to 60 days' duration. Rev. St. U. S. § 1852. Neither the governor nor legislature has any power to approve or pass bills thereafter. Territory v. Clayton (Utah) 18 Pac. 628. It is hardly necessary to cite authorities on this question. The mere reading of the act of congress solves the same.

The judgment is reversed, with directions to the court below to sustain the demurrer to the complaint. The case of Cheney v. Smith (Ariz.) 23 Pac. 680, is expressly overruled.

BAKER, C. J., having been of counsel for appellee in the court below, took no part in the cause in this court.

BETHUNE and ROUSE, JJ., concur.

(4 Ariz. 335)

MARICOPA COUNTY v. ROSSON. (Supreme Court of Arizona. May 13, 1895.) APPEAL BY COUNTY-BOND-BILL OF EXCEPTIONS -COUNTY TAX COLLECTOR-COMPENSATION.

1. A county may appeal without filing an appeal bond.

2. A judgment overruling a demurrer is a part of the record proper, and will be reviewed on appeal, although not embodied in the bill of exceptions.

3. A tax collector cannot recover from the county for executing tax certificates to the territory for land sold for delinquent territorial and county taxes, nor for money paid for acknowledgments to deeds to the territory for such land. Appeal from district court, Maricopa county; before Justice R. E. Sloan.

Action by R. L. Rosson against Maricopa county. Judgment for plaintiff, and defendant appeals. Reversed.

Millay & Bennett, for appellant. Fitch & Campbell, for appellee.

HAWKINS, J. Action to recover fees claimed by appellee for executing certain tax certificates to the territory, and for money paid for acknowledgments to certain tax deeds to the territory. The court below ren

$1 each for tax certificates issued to the territory. We find practically the same kind of a record and about the same questions involved as in Maricopa Co. v. Osborn (Ariz.) 40 Pac. 313.

Counties may appeal without filing appeal bond; hence the motion to dismiss the appeal is denied.

The motion for new trial not being here in a bill of exceptions, we can only consider. errors upon the face of the record. The judgment overruling the demurrer is a part of the record, and does not have to be excepted to or embodied in a bill of exceptions before it can be reviewed here. Hamlin v. Reynolds, 22 II. 207. We have just decided in Maricopa Co. v. Osborn that a county recorder has no cause of action against the county for filing and recording tax certificates and tax deeds to the territory. He accepts his office with the law as written in the statutes, and can get such fees only by the mode set out in the revenue act. The tax collector is in the same category. He has stated no cause of action in his complaint against the county.

The judgment is reversed, and cause remanded, with directions to the court below to sustain the demurrer to the complaint.

BETHUNE and ROUSE, JJ., concur. BAKER, C. J., took no part in this case, having been of counsel in the court below.

(55 Kan, 150) STATE ex rel. HOGAN v. FAGAN, County Auditor, et al.

(Supreme Court of Kansas. April 30, 1895.) Ex UNION SOLDIER-BURIAL-CHARGE ON COUNTY. Where an honorably discharged ex Union soldier, sailor, or marine, who served in the army or navy of the United States during the late war. dies without leaving sufficient means to defray funeral expenses, it is the duty of the county commissioners of the county where he resided to cause his body to be decently interred; and if there are surviving relatives who desire to conduct the burial, and who are unable or unwilling to pay the charges therefor, they must be permitted to do so free from the interference of the officer or agent of the county, but the expenses so incurred, and for which the county will be liable, cannot exceed the sum of $50.

(Syllabus by the Court.)

Petition by the state, on the relation of M. Hogan, for mandamus to compel W. F. Fagan, county auditor, and the county commissioners of the county of Shawnee, to allow a certain account. Writ allowed.

John T. Little, Atty. Gen., P. H. Coney, and Waters & Waters, for relator. W. F. Fagan, for respondents.

JOHNSTON, J. This is a proceeding to compel the county auditor and the county commissioners of the county of Shawnee to audit, allow, and pay an account of $50 alleged to have been expended in the burial of Carl H. Peterson, who died on July 23, 1894,