Redfield

(after stating the facts as above). Tbe principal contention of the surety company is that it was error to deny its motion for an instructed verdict in its f'a.vor. Upon some of the facts the evidence was conflicting. The defendant in error resided in California. During the year 1921 he was represented by Ms brother, who resided at Burley, Idaho, to whom he had given a power of attorney to execute a bond to the surety company to secure it against liability on its undertaking on the appeal. Neither ho nor his brother had any control over the certificate of deposit issued to the clerk of the state court, and when tho certificate was issued in the name of the surety company neither he nor his brother was consulted, or was aware of the exact nature o£ the transaction. The surety company directed the form of the certificate. There was evidence that the surety company could have collected the money, if at any time prior to the day irreeeding the date o£ the closing of the bank it had made demand therefor, and evidence tending to indicate that the surety company assumed the responsibility of leaving the money on deposit. There is absence of evidence to show that it consulted the…