dissenting.
I am unable to agree with my associates to the proposition that the turning over by Bartley to himself, at the commencement of his second official term, of bank drafts, certificates of deposit and other credits for and in lieu of money relieved the bondsmen of his first term and charged the sureties for the second term with the amounts of such drafts, certificates of deposit and other credits. It was held otherwise in an able opinion by Lake, C. J., in Cedar County v. Jenal, 14 Nebr., 254, wherein it was stated: “Thus we see that, it being money that was in Jenal’s hands, belonging to the county, both the law and his official bond united in requiring him to hand that over *481to his successor. The delivery of Parmer’s certificates was not payment, for they were mere promises of a stranger to the county to pay money. The payment of money can be effectuated only by the delivery of that which by the law of the land is recognized as money. * v ->.- jn -¿pg collection, care and disbursement of the revenues in this state, such certificates are not recognized at all by theláw, and no officer has any right whatever to deal in them on behalf of the public. If a treasurer invest the public funds in them, he is guilty of a highly penal offense. Criminal Code, sec. 124. It would indeed be a strange system of laws that would permit an act, denounced as a felony, to be pleaded in bar of an action brought to recover money lost by that act. But such is not the law. The only way in which it was possible for Jenal to have satisfied the law and his bond, and relieved himself and his sureties from responsibility as to this money, was to have handed it over to his successor in office. It being money which he held on the public account, it was money that the law and his bond required him to produce and hand over. Nothing else could suffice.” It is true the decision in the case from which the foregoing excerpt was taken received a severe shock at the hands of the majority of the court in State v. Hill, 47 Nebr., 456, but the writer there assailed, in language as strong as he could command, the proposition that certificates of deposit were money, and that their acceptance from an outgoing officer as money released him and his sureties. I can not better express the views I now entertain upon the subject than to here reproduce what I said in the Hill Case. After quoting section 2, article 4, chapter 88, Compiled Statutes, this language follows: “The foregoing statute defining the duties of the state treasurer requires him to account for and pay over, on the expiration of his term, to his successor, all moneys received by him belonging to the state. This he can alone do by delivering the amount in actual cash. In no other way can he satisfy the conditions of his bond to *482well and truly perform the duties of his office required by law. It is money that he is required to pay over. It is idle to say that a certificate of deposit is money. We know it is not. It is the mere promise of the person or bank issuing it to' pay money either on demand or at a fixed time. It is absurd to say that a promise to pay money is money. No person is required to accept such paper in discharge of a debt, and yet it is insisted that the liability of an outgoing officer and his sureties is released by the delivery to and acceptance by his successor of certificates of deposit in settlement, and that the state, whether it will or not, is bound. To such doctrine I cannot yield assent.” Of course, when certificates of deposit, bank drafts or other credits have been received in settlement from an outgoing officer for and in lieu of cash, and the money is thereafter realized thereon by the successor in office, to that extent the outgoing officer and his bondsmen are discharged from liability, for it is a payment in money when the cash is actually realized on the credits. The books in the state treasury left by Bartley, and the official statements made by him during his second term in charging himself with the specified amount of cash on hand, justifies the inference, in the absence of a showing to the contrary, that the money was obtained by Bartley on the credits which he turned over to himself, at the beginning of his second term as state treasurer.
As to the decision in Bush v. Johnson County, 48 Nebr., 1, all I care to say is that the writer took no part in that decision.
I prefer not to express myself on the questions discussed in the opinion of Sullivan, J., relative to the execution, approval and filing of the official bond of Bartley, but place my decision that the sureties are liable upon the proposition that, when this case was last before us, a judgment in their favor was reversed, and the cause remanded for a new trial. This was, in legal effect, an adjudication that the bond was a valid obligation, and became the law of the case, binding alike upon the parties and the courts.