I concur in the l’esult arrived at, for an additional and a stronger and more satisfactory reason, to my *351mind, than that stated by the judge who pronounced the opinion of the court. The judgment below is reversed for the error of the court in overruling the appellants’ motion for a' new trial. This, I think, is right, for the reason that the evidence does not sustain the finding. This point was made in the Circuit Court, and is embraced in the assignment of errors. But because the appellants’ counsel have failed to argue it, a majority of the judges of this court consider it improper to notice the point. This is the court of last resort. The great object should be to do justice in every case, and this cannot always be done unless the court is free to look into the entire record, without regard to the particular questions which counsel may feel inclined to argue. -It is a harsh rule, to say the least, to make parties suffer for the omission of their attorneys. There is no fact more apparent than that the brightest reputation ever made by this court for correctness of decision, and clearness of statement, was achieved during a period in which very little attention was paid as to what points were argued, but when the records were carefully examined and every question involved in them was fully considered, whether argued or not.
This action is on an official bond. The sureties ought not, in justice, to be held liable, unless their principal was in default. If they are to be robbed, even for a laudable purpose, it is better that the fact should appear; that at least they may have the sympathy of the public. The evidence is in the record, and does not even tend to show that Fry failed to account to the Auditor of State, as required by section six of the act prescribing the powers and duties of Auditor .of State. 1 G. & H. 120. The auditor, and not the treasurer, required him to pay over the money to the Treasurer of State. The - auditor had no power to do this. The money sued for was a part of the common school fund in the hands of Fry, treasurer of Tippecanoe county. It was his duty to pay it out, upon the warrant of the county auditor, to the several townships and *352incorporated cities and towns of the county, and not to the state treasurer. 1 G. & H., § 101, pp. 555, 556. If there was an excess in his hands over and above the amount to which his county was entitled, then, and not otherwise, the treasurer of state, and not the auditor, could have required him to pay such excess into the state treasury. 1 G. & H., § 98, p. 555. As this is a matter which goes to the merits of the case, and is not a mere technical objection to the introduction of evidence, I have thought it right to give my reasons for concurring with the court in the result arrived at.
Z. Baird and J. M. LaRue, for appellants. D. IS. Williamson, Attorney General, for the State.