Page:Federal Reporter, 1st Series, Volume 10.djvu/556

 644 FEDERAL REPORTER. �resulted in Mcintyre executing a bond for the appearance of Thompson and Hetherington at the then next term of the district court, there to answer to the said charge of robbery, The $2,000 package of money taken from the thieves was placed in the hands of this defendant, to be held by him as security against any loss he might sustain in con- sequence of his becoming surety for Thompson and Hetherington. This unbroken $2,000 package, however, was required by the proper authorities in lowa to use in prosecuting the thieves; and it was understood and agreed between the parties, at the time, that Mcin- tyre was to surrender to the county the said unbroken package as soon as the county should place in his hands the sum of $1,500, which was to indemnify him against loss if Thompson and Hether- ington failed to appear in court and answer to the said charge of robbery. The county, subsequentiy, placed in the hands of the defendant the $1,500, and the defendant surrendered the $2,000 package, according to agreement. Subsequently, the said Thompson and Hetherington appeared in the district court, as they were required to do by their bond, and the grand jury of the county ignored the charge — the district attorney of the district, to his honor be it said, deelining to prosecute in such a contemptible case. This put an end to the bond which the defendant had signed, and his obligations thereon were fully dischargea. The defendant then had no further risk to run. His further connection with the criminal charge of rob- bery and the execution of the bond for the appearance of the accused was absolutely at an end. He could have surrendered the money to the plaintifi without danger of further liability, except as hereinafter stated. After all this, and after the defendant had notice of the ignoring of the charge of robbery against Thompson and Hethering- ton, the plaintili demanded of the defendant the surrender of the money placed in his hands for the purpose aforesaid. Before this demand was made, however, it seems that several parties in this state had commenced suit against Marion county for alleged damages done to herses while in pursuit of the thieves and robbers who had plundered its treasury. Judgments were in some way entered in sev- eral of these peculiar cases, and the money was attached in the hands of this defendant to satisfy such claims. The plaintiff gave the defendant credit for the sums so attached, and requested pay- ment of the balance, which was refused, and this su't was brought to compel payment of the balance due. The defence was : ��� �