Lankershim

Response to petition for rehearing. The principal point decided in this case was that the county treasurer, when he has no notice of the illegality of the demand, or of the fact that no requisition has been made upon the auditor, or of any other fact to put him upon inquiry, may safely pay a warrant drawn upon the school fund if it is in due form and bears the genuine signature of the auditor or his deputy. And the judgment of the superior court was reversed on the findings because, while they show that the money here in controversy was paid by the treasurer out of the school fund on what purported to be a warrant for the amount so paid, they do not show that such warrant was not genuine and in due form, and do not show any other fact that ought to have deterred the treasurer from malting the payment on presentation of the warrant.

In their petition for a rehearing counsel for respondent contend that this proposition, conceding its soundness, has no application to this case because the findings show that the payment was made from the general school fund, whereas the law is that all county school moneys *536 must first be apportioned to the several school districts, and all…

The defendant was one of the sureties on the official bond of J. W. Broaded, treasurer of plaintiff, for the term of two years commencing on the first Monday of January, 1887; and this action is upon that bond to recover $7,910.80 for alleged delinquencies of the treasurer during that term. Broaded died November 29, 1889, and this action was commenced May 5,1890.

The cause was tried by the court, and judgment rendered for plaintiff for the sum of $7,371.60.

*527 The defendant has appealed from the judgment, and also from an order denying his motion for a new trial.

The judgment includes the sum of $3,840, alleged to have been paid out of the school fund, by the treasurer, in June, 1888, to some person unknown to plaintiff, upon an auditor’s warrant not based upon any order of the board of supervisors, nor upon any order of the superior court, nor upon any authority otherwise provided bylaw, with interest thereon from June 30,1888, until the date of the judgment. The residue of the judgment is conceded to be right; so that the only points made by appellant relate to the question, whether or not the treasurer justifiably paid out of the school fund said sum of $3,840.

As to this…