I concur in the conclusion reached, but not in the portion of the opinion overruling *Page 690 Haffner v. United States F. G. Co., 35 Idaho 517,207 Pac. 715, and Federal Reserve Bank v. Smith, 42 Idaho 224,244 Pac. 1102, because I think those cases are distinguishable from the situation herein and capable of being harmonized thus: Haffnerv. United States F. G. Co., supra, considered venue not liability, and while "virtue" and "color" are contrasted, no decisive holding was necessary or made therein as to liability, only as to a cause of action coming under section 5-402, I. C. A., formerly section 6662, I. C. S., 1919.
In Federal Reserve Bank v. Smith, supra, the court said:
" 'It is only such acts of a sheriff as are done under color of office, involving an abuse, as distinguished from a usurpation, of authority, that render his bondsmen liable,' " and here there was such abuse as to render the bondsmen liable and such holding, would not, it seems to me, be out of line with the holding in Federal Reserve Bank v. Smith, supra.