delivered the opinion of the court.

The petition states that the defendant was indebted to the plaintiff for a specified sum of money, had and received by the defendant from the plaintiff in several sums at times specified; that demand had been made upon defendant for payment, and that the money still remained due and unpaid. The answer of the defendant denied his indebtedness to the .plaintiff in the sums mentioned, and also denies his indebtedness to the plaintiff for any sum for money had and received from the plaintiff.

The plaintiff gave in evidence an order of the County Court of Henry county, appointing the defendant “ agent to represent Henry County in the Pacific Railroad Company; to receive and transfer the stock of said company; to give its vote *488and receive its dividend from said company; to receive the money from the county for the calls of the company, for the stock subscribed by said county, and pay the same over to the company when so ordered by the court; and superintend all transactions necessary between said Henry County and said Pacific Railroad Company, according to law and the order of the County Court of said county of Henry; and that he enter into bond to the County of Henry, in the sum of twenty thousand dollars, for the faithful performance of his duty.”

The plaintiff then proved by the collector the payment by him to the defendant of the sums of money mentioned in the petition, from moneys collected by him from a tax levied by the County Court to pay the subscription of stock to- the Pacific Railroad Company, and gave in evidence the defendant’s receipts therefor; and also gave in evidence an order of the County Court to pay the moneys so received by him into the county treasury, and proved service on defendant of a copy of that order. The defendant then moved the court to exclude from the jury all the testimony given by the collector, and also the receipts given by the defendant, which motion the court granted, and excluded them from the consideration of the jury.' The plaintiff took a non-suit, with leave to move to set it aside; and, after such motion was ineffectually made, brings the case to this court.

We are unable to perceive upon what grounds the court excluded the testimony. It tended directly to prove the allegations of the petition which were denied by the answer— that is, that the defendant had received the money from the plaintiff; for the collector was the agent of plaintiff to pay the money to defendant, and the defendant was agent of the plaintiff to receive the same, without any authority to appropriate it to any use without the order of the County Court.

So far as we can see, the evidence appears to have been legal and competent.

Judgment reversed, non-suit set aside, and cause remanded.