Beales, 111 Va. 697, 36 L. R. A. (N. S.) 285, 69 S. E. 1035, county treasurer cannot excuse loss of funds caused by insolvency of bank by showing long-prevailing custom of making deposits with knowledge of county authorities; United States v. Keehler, 9 Wall. 88, 19 L. Ed. 576, holding postmaster liable for money paid upon order of Confederate government; Boyden v. United States, 13 Wall. 24, 20 L. Ed. 529, holding receiver not discharged by showing money was forcibly taken from him; United States v. Farrell, 8 Biss. 263, Fed. Cas. 15,073, holding distiller not released from liability for taxes on account of fire; Bosbyshell v. United States, 77 Fed. 948, 23 C. C. A. 581, holding superintendent and bondsmen liable for bullion stolen without fault; United States v. Bryan, 82 Fed. 293, holding postmaster liable for funds embezzled by clerk appointed under civil service laws; United States v. Zabriskie, 87 Fed. 720, holding melter and refiner liable for embezzlement by assistant; Gartley v. People, 24 Colo. 157, 49 Pac. 272, Township v. Powell, 67 Mo. 397, 29 Am. Rep. 514, Mississippi Co. v. Moore, 74 Mo. 417, 41 Am. Rep. 324, Bush v. Johnson Co., 48 Neb. 10, 58 Am. St. Rep. 679, 32 L. R. A. 227, 66 N. W. 1025, People v. Faulkner, 107 N. Y. 483, 14 N. E. 417, and Wilson v. Wichita Co., 67 Tex. 649, 4 S. W. 68, all holding official liable for funds lost through failure of bank; District Township v. Morton, 37 Iowa, 553, Hennepin Co. v. Jones, 18 Minn. 206, Board v. Jewell, 4 Minn. 428, 20 Am. St. Rep. 587, 46 N. W. 915, Commissioners of Jefferson v. Lineberger, 3 Mont. 242, 35 Am. Rep. 465, Inhabitants of New Providence v. McEachron, 33 N. J. L. 342, Tillinghast v. Merrill, 151 N. Y. 143, 56 Am. St. Rep. 616, 34 L. R. A. 682, 45 N. E. 377, and Board of Commrs. of Bladen County v. Clarke, 73 N. C. 258, all holding public official liable for public moneys stolen without his fault; Perley v. Muskegon Co., 32 Mich. 140, 20 Am. Rep. 643, holding treasurer bound to account for what he receives; dissenting opinion in State v. Gramm, 7 Wyo. 329, 40 L. R. A. 708, 52 Pac. 552, majority holding treasurer not liable for money lost by failure of bank.

Distinguished in United States v. Adams, 11 Sawy. 106, 24 Fed. 350, holding collector of port not liable in bond while transporting money as carrier.

Denied in dissenting opinion in United States v. Thomas, 15 Wall. 353, 354, 21 L. Ed. 94, majority distinguishing and holding receiver of public moneys excused from liability, where loss due to rebels; State v. Houston, 78 Ala. 581, 56 Am. Rep. 60, Healdsburg v. Mulligan, 113 Cal. 214, 215, 216, 33 L. R. A. 464, 45 Pac. 339, 340, Wilson v. People, 19 Colo. 203, 41 Am. St. Rep. 246, 22 L. R. A. 452, 34 Pac. 946, Cumberland v. Pennell, 69 Me. 369, 371, 31 Am. Rep. 290, 291, and Livingston v. Woods, 20 Mont. 98, 100, 49 Pac. 439, 440, all holding public official not liable for moneys lost without his fault; dissenting opinion in Gart-. ley v. People, 24 Colo. 170, 49 Pac. 277, majority holding treasurer liable

for money deposited in solvent bank which subsequently failed; York Co. v. Watson, 15 S. C. 9, 40 Am. Rep. 678, and State v. Gramm, 7 Wyo. 329, 40 L. R. A. 698, 52 Pac. 540, all holding public officer not liable for money lost by failure of bank; State v. Copeland, 96 Tenn. 302, 311, 54 Am. St. Rep. 843, 848, 31 L. R. A. 845, 34 S. W. 428, 430, holding public officer not liable as insurer for public funds in his custody; Marx v. Parker, 9 Wash. 478, 43 Am. St. Rep. 852, 37 Pac. 676, holding public funds deposited in bank, not attachable by creditor of public officer; Clearview Park Imp. Co. v. Detroit etc. Ry. Co., 164 Mich. 80, 33 L. R. A. (N. S.) 250, 129 N. W. 355, dismissing writ of error to review entire judgment in ejectment where plaintiff sought to enforce part of judgment in his favor.

What will exonerate treasurers and other public officials from pay-
ment of money once in their custody. Note, 67 Am. Dec. 366,
368, 372.

Acts for which sureties on official bonds are liable. Note, 91 Am.
St. Rep. 519.

Liability of public officer for loss of public money. Note, 17 Ann.
Cas. 930.

Liability on official bond for loss by theft or bank failure. Note,
22 L. R. A. 450.

Court is not justified in giving instruction contrary to law; especially where plea relied on as ground for such instruction constitutes no defense, but is frivolous and would be stricken from record on motion.

Approved in Newman v. McComb, 112 Va. 411, 71 S. E. 625, court's refusal to instruct upon issue presenting no defense was not error.

Motion for new trial is not waiver of exceptions.

Approved in Preble v. Bates, 37 Fed. 774, holding presenting exceptions not of itself constituting waiver of motion for new trial; Dupuies v. Thompson, 16 Fla. 72, reviewing exceptions where motion for new trial cannot be considered; Tyler v. Shea, 4 N. D. 382, 50 Am. St. Rep. 662, 61 N. W. 470, holding acceptance of benefit by one absolutely entitled not waiving right to appeal.

What proceedings are inconsistent with motion for new trial so as to waive right to move. Note, Ann. Cas. 1914B, 616.

4 Wall. 186-187, 18 L. Ed. 321, UNITED STATES v. ALLSBURY. Surety's liability cannot exceed that of principal.

Approved in Hardaway v. National Surety Co., 150 Fed. 482, 80 C. C. A. 283, following rule; Roberts v. Board of Commissioners, 8 Wyo.

177, 56 Pac. 924, holding sureties not liable on bond where principal not liable for moneys lost.

Judgment at law fixing principal's liability is admissible as evidence, and determines amount of judgment in action against surety. The latter will not be reversed as too small, because judgment fixing principal's liability subsequently is reversed.

Approved in Howgate v. United States, 3 App. D. C. 294, judgment against defaulting officer of government for part of his defalcation is evidence, though not conclusive, against sureties in subsequent suit; Maine Cent. R. Co. v. National Surety Co., 113 Me. 477, L. R. A. 1916A, 881, 94 Atl. 934, in action against surety on bonds given by contractor, judgment for damages in action against contractor is conclusive on plaintiff, but not on surety; Moses v. United States, 166 U. S. 600, 41 L. Ed. 1130, 17 Sup. Ct. 693, admitting judgment against principal as evidence in action against surety.

Distinguished in Hellams v. Abercrombie, 15 S. C. 117, 40 Am. Rep. 689, holding surety entitled to foreclose for full amount though judgment against principal less.

Effect against surety of judgment against officer. Note, 52 L. R. A. 171, 187.

4 Wall. 187-189, 18 L. Ed. 388, LEFTWITCH v. LECANU.

Where an instrument is not incorporated into bill of exceptions, it must be annexed to it or so marked as to leave no doubt when found in record that it is the one referred to. A copy of note sued on, attached to pleadings, does not become part of bill by being merely mentioned therein as having been offered in evidence.

Approved in Weaver v. Schumpert, 168 Fed. 44, 93 C. C. A. 465, bill of exceptions reciting that transcript of judgment is attached, but not identifying such paper by some mark or number is insufficient; Grand Lodge etc. v. Dreher, 105 Ark. 679, 151 S. W. 436, transcript of testimony not approved by judge, or filed by clerk until after time for filing bill of exceptions does not become part of bill; International Order of Twelve Knights etc. v. Jackson, 101 Ark. 557, 142 S. W. 1152, where bill of exceptions did not identify insurance policy introduced in evidence, court could not consider errors in instructions based upon provisions of policy; Thornton v. Commonwealth, 113 Va. 743, 73 S. E. 484, evidence, not copied into bill of exceptions signed by judge, but appearing in separate papers not identified, is not part of record on appeal; Jeremy Imp. Co. v. Commonwealth, 106 Va. 489, 56 S. E. 226, certification and identification by judge of evidence, not incorporated in bill of exceptions, is sufficient; Kecoughtan Lodge, No. 29, K. P. v. Steiner & Kaufman, 106 Va. 591, 10 Ann. Cas. 256, 56 S. E. 570, stenographer's report of evi

dence, signed by counsel of both parties and judge, securely attached to bill of exceptions by paper fasteners was sufficiently identified; Tracy v. Carver Coal Co., 57 W. Va. 590, 50 S. E. 826, applying rule to evidence taken down and transcribed by shorthand reporter; Reed v. Gardner, 17 Wall. 411, 21 L. Ed. 665, refusing to consider depositions, exhibits, certificates, contained in transcript, but not in bill; United States v. Three Hundred and Thirty-seven Cases Wine, 1 Woods, 48, Fed. Cas. 16,506, refusing to consider deposition not identified and inserted in record after signing exceptions; Southwest Virginia Imp. Co. v. Frari, 58 Fed. 173, 7 C. C. A. 149, refusing to consider exceptions unless evidence out of which questions arose be given; St. Louis etc. R. R. Co. v. Godby, 45 Ark. 490, holding direction in bill for clerk to insert instructions, does not identify them; Pennsylvania Co. v. Sears, 136 Ind. 482, 36 N. E. 355, holding deposition placed within bill, but not fastened to it, not part thereof; New Albany v. Iron Substructure Co., 141 Ind. 509, 40 N. E. 47, holding commissioner's report of evidence, not part of record by direction "here insert"; Atchison etc. R. R. Co. v. Wagner, 19 Kan. 340, sustaining motion to strike out bill of exceptions containing directions to insert; Gunn v. Ohio River R. R. Co., 37 W. Va. 424, 16 S. E. 629, holding reference to paper, clearly identifying it, makes such paper part of record.

4 Wall. 189-196, 18 L. Ed. 416, MAYOR v. SHEFFIELD.

Municipal corporation having legal title to street and using and treating it as public, is liable for injuries caused by its negligent maintenance. A plea, to action for injuries so caused, that locus in quo was not legally established public street is not defense.

Approved in Langley v. Augusta, 118 Ga. 597, 45 S. E. 489, holding where city authorities authorized to construct sewer in particular manner after complying with given formalities, city answerable in damages to party sustaining injury as consequence of construction of such sewer, though prescribed method not followed in construction; Abilene v. Wright, 4 Kan. App. 711, 46 Pac. 716, city of second class is liable for damages for injury caused by defective sidewalk; Miller v. Detroit, 156 Mich. 637, 132 Am. St. Rep. 537, 16 Ann. Cas. 832, 121 N. W. 493, damages cannot be recovered from city for injury caused by dead limb falling from live tree between sidewalk and curb; May v. Anaconda, 26 Mont. 144, 66 Pac. 761, holding under statute providing that fee of streets shown on city plat shall be vested in city for use of public, where city has by ordinance improved and accepted such street it is liable for injuries caused by defects therein; Gilbreath v. Greensboro, 153 N. C. 397, 69 S. E. 268, in action for damages for negligence in maintaining street, city cannot question regularity of proceedings by which place. became street; dissenting opinion in Workman v. Mayor etc. of New

York, 179 U. S. 583, 45 L. Ed. 329, 21 Sup. Ct. 223, majority holding city liable by maritime law for negligence of servants in charge of fireboat in consequence of which it collides with and damages another vessel; Eastman v. Clackamas Co., 32 Fed. 28, and Greenwood v. Westport, 60 Fed. 570, 63 Conn. 593, all allowing damages against municipality for negligently maintaining bridge; Roundtree v. Commissioners, 80 Ind. 484, 41 Am. Rep. 826, issuing mandamus to compel commissioners to repair bridge; Leavenworth v. Laing, 6 Kan. 286, holding city estopped from denying street was legally dedicated; Shartle v. Minneapolis, 17 Minn. 312, holding city by assuming control of bridge became liable for injuries received thereon; Sewell v. Cohoes, 75 N. Y. 51, 31 Am. Rep. 422, and Houfe v. Fulton, 34 Wis. 619, 17 Am. Rep. 470, both holding municipal corporation estopped from denying that highway was a public street; Collensworth v. New Whatcom, 16 Wash. 231, 47 Pac. 441, holding city liable for injuries though acting beyond its corporate powers; Phillips v. Huntington, 35 W. Va. 411, 14 S. E. 19, holding prima facie case established when plaintiff shows city treated place as public; Wilson v. Wheeling, 19 W. Va. 349, reversing judgment, where instructions implied that exemplary damages might be awarded.

Distinguished in Faust v. City of Cleveland, 121 Fed. 813, 58 C. C. A. 194, holding city not liable for injury to vessel arising from obstruction in navigable river within its limits; Hageage v. District of Columbia, 42 App. D. C. 113, District of Columbia is not liable for death of child caused by falling from unguarded retaining wall in alley.

Municipal corporation is liable for personal injuries, the result of carelessness and negligence on part of public authorities in maintaining streets. Approved in City of Guthrie v. Swan, 5 Okl. 783, 51 Pac. 564, following rule; Barnes v. District of Columbia, 91 U. S. 551, 23 L. Ed. 443, Mayor v. Waldner, 49 Ga. 321, Cleveland v. St. Paul, 18 Minn. 286, and Ludlow v. Fargo, 3 N. D. 489, 57 N. W. 508, holding municipal corporation liable for negligently leaving excavation unguarded; Galveston v. Posnainsky, 62 Tex. 129, holding municipal corporation liable for injuries caused by negligent keeping of streets; Lenzen v. New Braunfels, 13 Tex. Civ. App. 351, 35 S. W. 348, holding city liable for negligently failing to supply water to extinguish fire; Petersburg v. Applegarth, 28 Gratt. 344, 26 Am. Rep. 362, holding city liable for loss of vessel due to submerged pile; Chapman v. Milton, 31 W. Va. 389, 7 S. E. 24, holding necessary to allege that place was a public street, or so used.

Distinguished in Hill v. Boston, 122 Mass. 371, 380, 23 Am. Rep. 358, 366, holding city not liable for injuries caused by defective construction of schoolhouse.

Municipal corporation cannot be held liable for injuries arising out of negligent maintenance of public streets by corporate authorities, unless it