Page:Federal Reporter, 1st Series, Volume 3.djvu/765

 758 FEDEBAIi BEPOBTEB. �deposit $250 to await the offer of compromise ; that he, the witness, took the money, gave the party a receipt for it, and put it in the collector's safe with the other money ; that he made a memorandum of it, and from wheuce it came, and that the same night he handed the whole bundle of money to the coUector, at the hour the collector was accustomed to deposit his money ; which is ail the account given of what became of the money, nor did the evidence state what was the resuit of the offer of compromise. Seasonable objection was made by the defendants that the evidence was not sufficient to show that the money became public money, or to establish their liability, but the court ruled that they were liable if the col- lector received and appropriated the money, which ruling constitutes the basis of the eighth assignment of errors. None can successfuUy deny that the evidence tended to prove the issue, and, if so, the question of its sufficiency was for the jury, and not for the court. Matters of law only are subject to re-examination under a writ of error. If the collector received the money, and appropriated it to his own use, he is clearly liable as for public money, as it is plain that he received it in his officiai character; and, if so, it is equally certain that his sureties are liable in this action, as they con- tracted that he should justly and faithfuUy account for and pay over to the plaintifs ail public money that came into his hands or possession. �9. Notice was given to the collector by the commissîoner that he must execute and forward to the office, at the earliest practicable -loment, an additional bond as collector, in the sum of $100,000. Pursuant to that notice, the collector executed such a bond, and procured it to be signed by five sureties, two of whom were the same as those on the bond in suit. Affidavits, in proper form, as to the responsibility of the sureties, were annexed, and the same were forwarded to the department, but nothing was heard from the bond, and no communication was had concerning the same. Proof was given by the defendants that the deputy of the collector, after the suit was commenced, saw both bonds in the office of the comptroller, and that he read the same snfficiently to see that ����