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 in*235structions 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.