
    City of St. Joseph, Plaintiffs in Error, v. Merlatt et al., Defendant in Error.
    1. Where a collector serves for two successive terms and is sued on his second official bond, it will not he presumed, as a matter of law, in the absence of proof, that all payments made by him into the treasury during the second fiscal year are made out of moneys collected by him from the revenue of that year and in extinguishment of his liabilities as collector incurred during that year.
    
      Error to Buchanan Court of Common Pleas.
    
    This was an action on the official bond of George Merlatt as collector of the revenue of the city of St. Joseph for the fiscal year 1855. The plaintiffs; are the mayor and council-mcn of the city of St. Joseph. The bond sued on is dated April 11, 1855. The fiscal year commenced April 11, 1855, the second Monday of April. Meriatt was collector for the year 1854. The securities on the bond for this year were persons other than the securities on the bond for 1855. The defendants pleaded payment in full of all sums received during the second official term. Evidence was given of various payments into the treasury during the second official term— one payment, amounting to $ 1,511.49, being made on the 12th day of April, 1855, the day immediately succeeding .the execution of the second bond. The following instructions were given to the jury at the instance of defendants: “ 1. That all payments, made by Meriatt as collector during the fiscal year of 1855 to the treasury of the city, will be^ presumed in the absence of proof to the contrary to be made in the extinguishment of the liabilities of that year. 2. That payments made by the collector, as stated, during the fiscal year, 1855, will be presumed to be made out of moneys collected by him during that year for the city out of the various sources of revenue for that year, unless the contrary is shown by the plaintiff.”
    Other instructions were given and refused. It is deemed unnecessary to set them forth. The jury rendered a verdict for plaintiff for $1,540.42. The plaintiff brings the cause to this court by wi'it of error.
    Loan, for plaintiffs in error.
    
      Vories, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

The opinion in the case of the State, to the use of Buchanan County, v. J. B. Smith and others, (ante p. 226,) will enable the court to determine the questions of law arising in this suit.

The first and second instructions given for the defendants were, under the circumstances, clearly erroneous. These instructions were to the effect that payments made by a collector during a fiscal year will be presumed to have been paid out of moneys collected for that year. They were directly against the case of Draffen v. City of Boonville, 8 Mo. 395.

There was no case made in the pleadings for the recovery by the defendant of any excess of revenue overpaid for the year 1855. The other judges concurring, the judgment will be reversed and the cause remanded.  