structed the commissioners to issue the bonds to the corporation building the road, which the commissioners did. The commissioners, therefore, as agents of the county, acting under apparent authority, issued the obligations in question, and they are valid in the hands of an innocent purchaser for value. The evil of a proposition in the alternative form is, that voters who may be hostile to one of the roads named, and who would vote against aid to such road, may be induced, by reason of the supposed probability of the railroad in which he is in favor being the successful line, to vote in its favor, and thus the proposition in that form may be adopted by the requisite majority, when, had propositions been submitted separately, both would have failed. In other words, electors may be induced to vote for the proposition by exciting false hopes as to the road that will be constructed, and thus carry the proposition by the necessary majority. Such bonds, however, are not void when duly certified, and have passed into the hands of innocent purchasers for value. In the able and carefully prepared brief of the attorney for the plaintiff, it is said that "municipal bonds issued without power clearly conferred by constitution or statute are void everywhere and in all hands": Marsh v. Fulton Co., 10 Wall. 676; East Oakland v. Skinner, 94 U. S. 255; Lewis v. Shreveport, 108 U. S. 282; and that was the holding of this court in Reineman v. Covington etc. R. R. Co., 7 Neb. 310, and Hamlin v. Meadville, 6 Neb. 227. It is also true, as he contends, the holder of municipal bonds is chargeable with notice of all provisions of statute and constitution in reference thereto: Ogden v. County of Daviess, 102 U.S. 634; Dixon Co. v. Field, 111 U. S. 83. But neither proposition is applicable to the facts of this case.

2. The action was brought nine years after the bonds were issued and delivered, and the plaintiff shows by his petition that he has been a tax-payer of Platte County during "many years past." There are many cases holding that such delay and laches will defeat an action where relief would have been granted had the application been seasonably made: Supervisors v. Schenck, 5 Wall. 772; County of Clay v. Society for Savings, 104 U. S. 579; Johnson v. Stark Co., 24 Ill. 75; Keitsburg v. Frick, 34 Ill. 421; Commonwealth v. Pittsburgh, 43 Pa. St. 391; Steines v. Franklin Co., 48 Mo. 167; Bradley v. Franklin Co., 65 Mo. 638; Burr v. Carbondale, 76 Ill. 455; Burlington etc. R. R. Co. v. Saunders Co., 16 Neb. 123.

Upon the whole case, no sufficient reason has been shown to

justify the court in granting or continuing the injunction in force in this case. The injunction is therefore dissolved and the action dismissed.

MUNICIPAL RAILROAD AID BONDS - VALIDITY OF, IN HANDS OF BONA FIDE PURCHASERS. -Bonds issued by a county are valid in the hands of bona fide purchasers, notwithstanding the fact that there were such irreguarities in their issue that if the question of their validity had been raised at the proper time, they would have been declared invalid: State v. Commissioners, 39 Kan. 657; 7 Am. St. Rep. 569, and note. Municipal bonds in aid of a railroad are not commercial paper, and even in the hands of innocent and remote purchasers are subject to all equities existing against them at the time of their issue: Diamond v. Lawrence County, 37 Pa. St. 353; 78 Am. Dec. 429, and note. See extended note to Morris Canal Co. v. Fisher, 64 Am. Dec. 428445. Municipal bonds in aid of a railroad, not issued according to law, are roid: Williams v. People, 132 Ill. 574.

LACHES-EFFECT OF, ON Granting Relief. - Equity will refuse an injunction to one who has unreasonably delayed: Sheldon v. Rackwell, 9 Wis. 166; 76 Am. Dec. 265; extended note to Smith v. Thompson, 54 Am. Dec. 130134. Equity will refuse to aid a stale claim or encourage laches: Bates v. Gillett, 132 Ill. 287; Sanchez v. Dow, 23 Fla. 445; Burgess v. St. Louis Co. R. R. Co., 99 Mo. 496.

PASEWALK V. BOLLMAN.

[29 NEBRASKA, 519.]

JUDGMENT AS EVIDENCE AGAINST SURETIES IN INDEMNITY BOND. -In an action against sureties on a bond given by plaintiff in execution to a a sheriff, to indemnify him against judgments to which he shall be a party, by reason of a levy on property claimed by a third party, a judgment so obtained against the officer, in an action defended for him by the principal in the bond, is conclusive against the sureties, in the absence of fraud and collusion, although they had no notice of the pendency of the action in which such judgment was obtained.

JUDGMENTS-SATISFACTION OF. - COUNTY WARRANTS AND APPROVED PROMISSORY NOTES, received and accepted as cash in satisfaction of a judg. ment and execution, will be treated as a good payment in cash.

PRACTICE. FAILURE TO SUBMIT MATERIAL ISSUE TO JURY upon which there is no conflict of evidence is not reversible error.

H. C. Brome and A. C. Brown, for the plaintiffs in error.

D. A. Holmes, for the defendant in error.

NORVAL, J. This is an action by Bollman, a sheriff, upon an indemnifying bond given to W. L. Rothwell, his deputy, by the Norwegian Plow Company, a judgment creditor, conditioned for the officer's indemnification in case he would levy certain executions held by him in favor of the said company and one J. H. Thomas, and against Fred Fisher, upon certain prop

erty claimed by Deere, Wells, & Co. The condition in the bond reads: "If the above-bounden Norwegian Plow Company shall well and truly save harmless and indemnify the said W. L. Rothwell, and any and all persons aiding and assisting him in the premises, from all harm, trouble, damage, costs, suits, actions, judgments, and executions that shall or may at any time arise, come, or be brought against him, them, or any of them, then this obligation to be void, otherwise to be and remain in full force and effect."

The petition alleges the execution and delivery of the bond, the levying of the executions, and the sale of the property, and that the proceeds thereof were paid to the Norwegian Plow Company. The petition further alleges that afterwards the said Deere, Wells, & Co. brought an action against the plaintiff for the conversion of said property so levied upon, in the circuit court of the United States for this district, and on the sixteenth day of June, 1886, a judgment was rendered in said suit in said court against the plaintiff herein for $3,000 damages, and $198.65 costs of suit, and plaintiff was compelled to and did pay the said judgment and costs, and $218 accrued costs and expenses. The petition further avers that the Norwegian Plow Company was notified of the pendency of said action in the federal court, and that the defendants have failed to pay the plaintiff said amounts, or any part thereof.

The defendants, answering, admit that the executions were issued and levied upon certain personal property, but deny that they were issued at the request of the Norwegian Plow Company, or that the property levied upon was at any time claimed by Deere, Wells, & Co. The defendants also admit that after the levy of the executions, but before the sale of the property taken thereunder, they signed an instrument in terms like the one set out in the petition, but aver that at the time they signed such instrument they and each of them did so with the express understanding and upon condition that it should be executed and signed by the Norwegian Plow Company, and that they never anthorized or consented to the delivery thereof except upon the above condition. The defendants further deny that the Norwegian Plow Company, in consideration of and upon the promise of plaintiff to sell said goods, executed and delivered to the deputy sheriff for the plaintiff the obligation declared on, but aver that it was never executed by said Norwegian Plow Company, nor was said obligation ever delivered to said deputy, or any other person, by said

company. After denying the fourth, fifth, and sixth paragraphs of the petition, the answer admits that Deere, Wells, & Co. brought suit against the plaintiff in the United States circuit court, and recovered judgment therein for the amounts stated in the petition, but deny that said action was brought to recover for the conversion of the goods levied upon under said executions. The answer alleges that the judgment rendered in the circuit court was for the conversion of goods by plaintiff and his agents, other than the goods taken by Rothwell under said executions.

The reply denies all new matter contained in the answer. The cause was tried to a jury, and verdict for the plaintiff rendered for $3,797.87.

The first error assigned is, that the evidence does not show that the bond upon which the action was brought was delivered to the officer in its present condition with the consent of the defendants. The defendants admitted, when upon the witness-stand, that they executed the bond at the request of E. B. Mower, the traveling salesman of the Norwegian Plow Company, and delivered it to him, but claimed that the agreement was, that it was also to be signed by the company before it should be delivered to the obligee. The testimony of the witness Dixon tends to corroborate the defendants.

E. B. Mower, called by the plaintiff, testified that he procurred the signatures of the defendants to the bond, that he told them he wanted to use it that day in the Fisher case; that he was going back to Creighton that day for that purpose, and expressly denies that he told the defendants that the bond would be signed by the Norwegian Plow Company. It further appears that the defendant Pasewalk signed his name on the first line left for signatures, and no place was left on the bond for the signature of the company.

R. E. Allen, called by the plaintiff, testifies that he was present when the defendant McClary signed the bond, that he does not remember of Dixon being present at the time, that there was nothing said in witness's presence about any one else signing the bond, and that it was delivered to Mower in his presence.

Upon the question of the execution and delivery of the bond, the court on its own motion instructed the jury as follows:“2. You are instructed that in this case the burden of proof is upon the plaintiff, and before he can recover he must prove all the material allegations of his petition by a fair preponderAM. ST. REP., VOL. XXVI.-26

ance of the evidence. One of the material allegations of the plaintiff's petition, and the only question of fact for you to determine, is, that defendants, at the time said bond was delivered to the agent of the Norwegian Plow Company, consented that it should be delivered to plaintiff without said Norwegian Plow Company having signed the same. It devolves upon plaintiff to prove that such consent was given, either expressly or by implication; and if you believe from the evidence that defendants signed said bond without any understanding that it should be signed by the principal, and delivered the same to principal's agent, and were careless and indifferent as to whether the principal signed said bond or not before it was delivered to plaintiff, then defendants' consent would be presumed that said bond might be delivered to plaintiff without the principal's signature thereto.

"3. In this case, if you believe from the evidence that the defendant did not consent that said bond should be delivered to plaintiff by the agent of the Norwegian Plow Company until said company had signed the same, or if, from the evidence, you believe that the agent of the Norwegian Plow Company agreed with defendants, at the time they signed the bond, that he would sign the name of the Norwegian Plow Company upon the bond in case he used it, then in either case defendants are not liable upon said bond, and your verdict must be for the defendants."

These instructions fairly submitted to the jury the issue presented by the pleadings and evidence, whether or not it was the understanding that the bond should be signed by the Norwegian Plow Company before it should be delivered to the officer. No place was left upon the bond for the signature of the principal, nor is it claimed that the obligee had any knowledge that it was to be signed by any one else. The testimony on the part of the plaintiff was given by witnesses who appear to be entirely disinterested, and if true, fully sustains the conclusions reached by the jury. It was the province of the jury to pass upon the credibility of the witnesses, and determine the weight to be given to the testimony of each. By the verdict the jury have said that the plaintiff's witnesses were truthful. The evidence will not justify us reaching a different conclusion.

It is undisputed that in the suit brought by Deere, Wells, & Co. against the plaintiff in this action, in the United States circuit court, the principal mentioned on the face of the bond,