The State,ex rel. The City of Columbus, r. Hauser et al. of the clerk, as so much money, and the same should be negotiated and sold by said treasurer. "Plaintiff charges and avers that said bonds were, on the -day of ——, 1871, duly issued and placed in the custody and control of said treasurer, as provided by said ordinance; that the said Hauser, treasurer aforesaid, under and pursuant to said ordinance, and while acting as treasurer as aforesaid, sold all said bonds and assigned and transferred the same to the purchaser, and delivered the the same to him. And plaintiff avers, that, on the 2d day of May, 1873, the office of said Hauser, as treasurer, expired, and one Alexander H. Kraining was duly elected as his successor; that the said Hauser did not honestly and faithfully perform the duties of his said office, and pay over, as required by his said bond; that he failed and refused to account to his said successor in office for the said bonds, or any part thereof; that he failed and refused to account for and pay over to his said successor the value or proceeds of said bonds, or any portion thereof, although duly requested; that he did not, during his said term of office, pay out on warrants, properly drawn upon him, any of the proceeds of said bonds, or any money on account thereof; that $15,000, on account of said bonds, is now due the relator, and is wholly unpaid, and plaintiff demands judgment for thirty thousand dollars and all proper relief." The bond sued on was in the penal sum of thirty thousand dollars, and was payable to the State of Indiana. It was dated on the 22d day of May, 1871, and was acknowledged by the appellees on the 25th day of the same month. The condition of this bond was as follows: "The conditions of the above obligation are such, that whereas the aforesaid Zachariah H. Hauser was, on the 2d day of May, 1871, elected treasurer of the city of Columbus for the term of two years, and until his successor is duly elected and qualified: Now, therefore, if the said The State, ex rel. The City of Columbus, v. Hauser et al. Zachariah H. Hauser shall faithfully and honestly perform the duties of said office, and pay over all moneys received by him according to law and the ordinances of said city, then this obligation shall be null and void; otherwise to remain in full force and virtue in law." Copies of the ordinances mentioned in the complaint are in the record. These ordinances are correctly described in the complaint, and we need not set them out in this opinion. Each of the ordinances provided for the issue and sale of certain described bonds of the city of Columbus, the appellant's relator; and each of them also provided, that all money arising from the sale of said bonds should be paid into the city treasury of said city, and disbursed, as other funds, upon the warrant of the mayor and clerk. The appellees' defense in this action can be best stated, we think, in their own language; and therefore we set out, in full, their joint answer as follows: "The defendants Hauser, Barrett, Jones and Hiner, for answer to the first paragraph of complaint, say, that, on the 30th day of December, 1870, after the adoption of said ordinance of September 27th, 1870, providing for the issue and sale of water-works bonds, said common council of said city of Columbus superseded the provisions of said ordinance, in so far as they provided for the negotiation and sale of said bonds by the defendant Hauser, by ordering and directing the city attorney of said city, as their agent, to proceed to Indianapolis and ascertain upon what terms said bonds could be sold; in pursuance of which order said attorney did enter into negotiations, as agent of said common council, for sale of the bonds mentioned in said ordinance, and in the course of such negotiations obtained from Woollen, Webb & Co., bankers, of Indianapolis, a proposition to purchase said bonds at par, provided said common council would permit the price thereof to The State, ex rel. The City of Columbus, v. Hauser et al. remain in their bank, at Indianapolis, and not draw the same out for any other purpose than the construction of said water-works, and no faster than was required for that purpose, in consideration of which they would pay to said city interest on the price of said bonds while they remained in their hands, at the rate of four per cent. per annum; which proposition said attorney, on, to wit, the 2d day of January, 1871, reported to said common council, which said body thereafter, to wit, on the 26th day of January, 1871, by an order duly entered of record in their minutes, accepted said proposition of said Woollen, Webb & Co., and directed the defendant Hauser, then treasurer of said city, as their agent and in no other capacity, to sell the bonds of said city, provided for by said ordinance, to the amount of $45,000.00, to said Woollen, Webb & Co., upon the terms of their said proposition, or to any other responsible parties upon equally favorable terms. Thereafter, to wit, on the 7th day of February, 1871, said defendant Hauser, in pursuance of said last mentioned order and by no other or different authority, sold and delivered to Messrs. McEwen & Sons, bankers, at Columbus, Indiana, said bonds of said city, to said amount, upon terms and conditions identical, in every respect, with those so as aforesaid offered by said Woollen, Webb & Co., and accepted by said common council, to wit, said McEwen & Sons purchased said bonds at par, upon condition that the price of the bonds should be retained by them in their bank, and only be drawn out by said city for the construction of said water-works, and no faster than required for that purpose, said McEwen & Sons to pay to said city interest on the price of said bonds, while it so remained in their hands, at the rate of four per cent. per annum. Thereafter, to wit, on the 9th day of February, 1871, said defendant Hauser reported orally to said common council, then being in formal session, the fact of such sale and the full terms thereof as The State, ex rel. The City of Columbus, v. Hauser et al. herein stated, and said common council formally approved the sale; and thereafter, to wit, on the day of March, 1871, said defendant embraced in his report as treasurer for the month of Februrary,1871, a statement of the fact and terms of such sale, as above stated, and said common council thereafter, on the day of March, 1871, again approved the same. "The defendant further avers, that, after said common council had adopted the ordinance providing for a second series of water-works bonds, as mentioned in complaint, said common council themselves, on the 1st day of July, 1871, while in formal session, sold the entire amount of bonds, provided for by said ordinance, to said McEwen & Sons, upon terms and conditions the same in every respect as those upon which they had purchased said first series of bonds, as herein set forth, and said bonds then being in the possession of said McEwen & Sons, for safe-keeping for said city, they, said McEwen & Sons, thereupon assumed the ownership and property thereof, and sold the same to third parties; and defendents aver, that the defendant Hauser had no connection with the sale of said second series, in any capacity whatever. "Defendants aver that said common council continuously recognized and regarded the conditions upon which both said series of bonds had been sold, and did not draw out of the hands of said McEwen & Sons any portion of the proceeds of said bonds for any other than water-works purposes, or any faster than was required for that purpose; that whatever portion was so drawn out by said common council was duly expended by them in the construction of said water-works, and none whatever thereof ever came into the hands of the defendant Hauser, as treasurer of said city, or in any other capacity; that all of the proceeds of said bonds not so expended by said common council, prior to the 29th day of The State, ex rel. The City of Columbus, v. Hauser et al. August, 1871, and being the sum of, to wit, $20,000.00, remained on said day in the hands of said McEwen & Sons, a debt from them to said city, and defendants aver, that, on said day, said McEwen & Sons suspended payment and became insolvent, and have at no time paid to said city, or to the defendant Hauser, as treasurer, or in any other capacity, any part of said debt, but still owe the entire amount thereof to said city. And the defendants aver that the water-works bonds and money arising therefrom, mentioned in said first paragraph of complaint, are the same herein mentioned, and not other or different. "2. The defendants, for further answer to so much of said first paragraph of complaint as relates to said second series of bonds, and for answer to the fourth paragraph of complaint, say, that said bonds came into the hands of the defendant Hauser, for negotiation and sale as agent of the common council of said city of Columbus, and not as treasurer of said city, and were sold by him as such agent to McEwen & Sons, bankers, at Columbus, Indiana, on, to wit, the 1st day of July, 1871, upon the following terms and conditions, to wit: Said McEwen & Sons purchased said bonds at par,upon condition that the proceeds thereof should be allowed by said common council to remain in their bank, and not be drawn out or expended for any other purpose than the construction of said water-works, and no faster than was required for said purposes; said McEwen & Sons, in consideration thereof, agreeing to pay said city interest on said proceeds at the rate of four per cent. per annum. Thereafter, on the same day, the common council of said city, having full knowledge of the terms of such sale, ratified and approved the same, and defendants aver that said common council continuously thereafter recognized and regarded said contract, and did not draw out of the hands of said McEwen & Sons any part of the proceeds of said bonds for any other purposes than the |