concurring and dissenting.
I concur in the opinion of Justice Leonard that counsel for respondents, Wood & Bichards, by arguing this appeal on its merits, waived the objections which they afterwards made to the transcript, and I concur in his opinion that as to them the judgment should be reversed. But I think the judgment as to the sureties ought also to be reversed. The instructions given to the jury, at their request, were, in my *311opinion, erroneous, and as the statement does not purport to contain all the evidence, it cannot be said to establish any fact so conclusively in favor of the sureties as to render the error in the instruction immaterial.