FEDERAL· REPORTER.

ily tosh'ow them: But the Jetter of the contract made his liability pend upon the fact of such prevention by the Texas government, and it should be averred and proved by the plaintiff. It is notnecessary, in determining this demurrer, to discuss whatcharacter of defect in the defendant's title would excuse him from performance, nor what effort, if any, he should have made to cure any defect. That matter would be more properly considered and determined at the trial on the merits. Nor does the court feel called upon here to consider the suggestion made by counsel for plaintiff, that plaintiff might be willil)g to accept such title as the defendant might have in satisfaction of the bond. No such question is presented by the pleading. On the face of the petition it is bad; and the demurrer is sustained, with leave to plaintiff, all payment of the costs of this demurrer, to file an amended petition within 30 days from the filing of this opinion herein, and leave to defendant to plead therElto on or before the 1st day of February next.

McCONNELL t1. SIMPSON

et al.

(Oi'f'cuit OO'U'f't,D. NeQ'f'a8ka.

November 80, 1888.)

OFFIOIAL BOND MAL-

CoUNTI1llS-WARRANTS-NEGOTIABILITY -TREASURER FEASANCE. .

Where a county treasurer, who by law was forbidden to buy or sell, or in any manner deal in county warrants, upon paymentof a county warrant neglects to cancel it, but marks it, "Not paid, for wantof funds," and puts it into circulation, a subsequent holder. though he purchased it for value and in good faith, cannot maintain an action the sureties on the official bond of the treasurer for alleged malfeasance In office.

At I . aw. On demurrer to petition. Action by Samuel P. McConnell against Duke W. Simpson, Thomas B. Stevenson,Monroe L. Hayward, James W. Eaton, William B. Hargus, JacobSiehl, Rufus F. McComas, Josiah Rogers, and Robert P. Draperon the bond ofDUke W. Simpson. as county treasurer of Otoe county, Neb. kRan8om, for plaintiff. Stevenson & Hayward, fordefl'ndants. DUNDY, J. Defendant Simpson was at one time county treasurer of Otoe county; one of the counties in this state. All of the other defendants were sureties on his official bond. Simpson is charged with malfeasance in office, in consequence of which. itis alleged, the plaintiff was injured to the amount of about S3,900, and the plaintiff seeks to hold the other delendantsresponsible for sl.Jch alleged malfeasance. Before this action was commenced the plaintiff had sued Simpson alone in this court, and had recovered a judgment against him for the said sum. Simpson was described as treasurer of Otoe county in that suit, and the wrongseomplained of were a.ttributed to him in his official capacity.

M.'CONNELL fl. SIM.PSON.

7Q1

and judgment went against him by default. None of the other defendants, so far ae the record shows, ever appeared or knew of that suit. It was made to appear in the other suit that Simpson, while .he was the treasurer of Otoecounty , sold, or in some way put. in circulation.. several county warrants, which. formed the basis of that lluit. That the warrants finally came into the hands of this plaintiff, who claimed to be the bonafide holder of the same; but,beforethe said Simpson was sued, the plaintiff had brought suit against Otoe county, on the.identical warrants, and he Was defeated in that action, for the reason that Otoe county had redeemed the warrants with its own money, by paying the amount to the lawful holder and owner thereof. Simpson was at the time the treasl!rer of the county, and received the warrants from the holder at the time of the redemption; but he neglected to cancel the same, as the law required him to do, but, instead of doing that, he indorseu on the warrants, "Presented for payment, and not paid, for want of funds." Some time after this was done, he sold or transferred, or in some way put on the market, either by himself or through his confederates, a large number qfwjlrrants, of which.tbe ones in question were a part, moet of which had been redeenled with the public money, and by himself ll.$ county treasurer. These warrants partake of the character of negotiable paper to some extent, but not for all purposes. Title to the same vests in the purchaser by mere delivery, they being payable to bearer. But the county was not deprived of the right or opportunity to make any proper or valid defense to the suit based on such warrants, any more than it would have been had the suit been brought by the origina1 payee. Briefly stated, this is the condition of things out of which this litigation grows: The county commissioners of Otoe county issued several warrants on its treasurer, payable to or bearer. The warrants were duly delivered to the payee therein named, who was the rightful holder and owner thereof. He presented the same to Simpson, the treasurer, for payment, anc;l they were redeemed by him with the public money.: He . neglected to cancel the same, as he ought to have done, .but instead thereof marked on them. "Not paid, for want offunds." He afterwards let them go out of his office, to find their way onto the market, and eventually into the hands of this plaintiff. Suit was brought against the county on the warrants, and the plaintiff was defeated in his effort to compel the county to pay the warrants the second time. Then Simpson was sued for his misdemeanors in office, and a judgment was obtained against him for the amount claimed in this suit. At the time Simpson was such county treasurer. and long before, the laws Qf this state prohibited the county treasurer from buying or selling, Qf in any way dealing in, county warrants, and made it a penal offense to do SQ. He was perfectly well aware of that, 8s.subsequent proceedings have fully demonstrated. Whoever procured the warrants frQm him must have had abundant opportunity to know, and reason to beljeve, that fraudulent practices were being indulged in by both the

state at the time; having been convicted of embezzling the publicfunds,

No defense was made by Simpson, he being in the penitentiary of this

762

FEDERAL REPORTER.

transaction. The purchaser, if such there ever was, must have known that he had no right to the warrants issued to another, especially when found in the hands of the treasurer, whose duty it was to pay them, and who was forbidden by law to sell them. There was no honesty or good faith in the transaction. There could have been none. It was malum prohibitum. It was about as bad as anthing in that line could be; and the person or persons, whoever he or they may be, who received the warrants, stand in but little, if any, better light than Simpson himself. Does the present holder, though a bona fide purchaser, stand in a more favorable light, so far as the law is concerned, than the person who first took the warrants from Simpson, after they had been paid? It is \ submitted that he does not, because no person could purchase and hold them divested of the original taint resting on them. The county, and the sureties as well, can make the defense here relied on, which is most effective. The numerous transfers of the warrants sued on did not part to them any additional value. The right to make any defense thereto remains intact; and, as the person who took the warrants from the treasurer was particeps criminis, neither he nor those claiming under him have any standing in court. . Numerous other questions are.raised by the demurrer, but it is unnecessary to consider them. The demurrer must be sustained.

ROBINSON

etal.

'D. HINTRAGER.

C(Jlrcuit (Jourt, No D. [owo, E. D. December 6,1888.)
PARTNERSHIP-SURVIVING PARTNERS-AcTIONS-PARTIES-JOINDER.

Under Code Iowa, 2543-2545. requiring actions to be brought in the name of the real pllrty in interest, except that an executor or administrator, guardian, trustee .of an express trust, a party in whose name a contract is made for another's benefit, or a person expressly authorized by statute may sue without joining the-interested party, and providing that all parties having an interest in the subject of the action, and in obtaining the relief demanded, may be joined, unless otherwise provided, an administratrix of a deceased partner should notbe joined with the survivorin an action against the firm's debtor on an account stated, before settlement of the partnership and distribution of the assets, as, while she has an interest inlihe proceeds, she has none in the chose in action itself, the title to which, upon her intestate's death, passed to the survivor. .

At Law. On motion to dismiss for misjoinder of plaintiffs. Action on contract by Laura P. Robinson, administratrix of the goods and chattels of F. M. Robinson, and J. B. Powers, survivor of himself and said Robinson, lawyers, partners as Robinson & Powers, against William Hintrager, for legal services rendered by said firm to the fendant. Powers ere Lacy, for plaintiffs. D. W. Oram, for defendant.