| Ill. | Jan 15, 1878
delivered the opinion of the Court:
Appellees say, there is no evidence showing that Isaac Smith was a defaulter even at the time of his death; that there is no evidence that he ever received any of the permanent fund of the township, the evidence showing that the whole of that was loaned at the time of his appointment in 1870, that the only evidence of a default was, that after his death his administrator failed to find all the property belonging to the township. This latter was prima facie sufficient. The evidence shows that Smith, on his taking upon himself the office, March 29, 1870, received from two funds the sum of $9927.38, and if part thereof was loaned at the time, he had the securities for the amounts loaned, and he was bound to respond in money or securities to the extent of that sum. The deficiency between the amount on hand, and what had been received, which was found upon his death, made a case of default on his part. The whole amount of that deficiency, after deducting what had been paid by the estate of Isaac Smith to apply thereon, is $2112.12, and deducting therefrom $675, which was received after reappointment for the second term, leaves $1446.12 as the sum which came into the hands of the treasurer during his first term of office; the fact that part thereof was securities for money loaned, making ho difference) as before said. The treasurer, then, during his first term of office, became chargeable with this sum of $1446.12, and stands charged therewith until his discharge be shown.
Appellees, to exonerate themselves as sureties upon his bond, -must show that the treasurer paid out or disposed of this sum in pursuance to law. Coons v. The People, 76 Ill. 384. Nothing of the kind is shown here. All that is pretended in this respect, is the urging of presumptions that there was no default, claimed as arising out of various statutory provisions in relation to the subject, and the general presumption of the performance of duty. But such presumptions avail nothing against proof to the contrary, that there was a default, which we find from the evidence.
It is said that Isaac Smith became his own successor in office, by virtue of his reappointment in March, 1872, and that the law presumes he paid over all the money and delivered all the property of which he was the custodian, to himself, as such successor, at that time—the law requiring a township treasurer, at the expiration of his term of office, to pay and deliver over to his successor in office all money on hand and all notes and securities for moneys, papers, etc.
Smith, after his reappointment, never gave a new bond with securities for the faithful performance of the duties of the office, the statute requiring that the township treasurer shall do so “ before entering upon his duties.” If there had been proof here that the amount in question was on hand at the time of the reappointment, March 29, 1872, then it would have been a subject for consideration, whether, under the circumstances here, it could be set up as a discharge that the treasurer had paid over such amount to his successor in office, himself, and faithfully discharged the duties of his office in so doing, he not having given a new bond. But there was no such proof, and hence, as we consider, that question does not come up. It is insisted that it is the presumption that the amount was then on hand at the expiration of the first term. W'e do not admit that. The defalcation is established, but the time at which it occurred, whether during the first term or subsequent to the reappointment, does not appear, and we do not see why it may not as well be presumed that the treasurer misappropriated the money during the time of his first term of office, as during the time which elapsed after his reappointment.
The mere naked fact, as shown by the minutes of the trustees, that the treasurer, at the time he was reappointed, made his report as treasurer, and the same was “ carefully examined,” we do not attach any significance to, as proof in this regard. It can be the foundation of only conjecture. The report was but a statement of the treasurer, and it was carefully examined, that is all.
As respects the $600, shown by the evidence to have been paid to Smith between the time of his reappointment, March 28, 1872, and his death, on a school note in his possession, appellants claim that appellees are liable for that also; that this was a note in the hands of Smith as treasurer, during the two years of his term of office in respect of which the bond was given, and that it is not shown that this note was properly accounted for and paid over to the treasurer’s successor in office according to the condition of the bond. We may dismiss this with the remark, that it does not appear that this note was in the hands of Smith during the said two years. All the evidence shows is, that it was a “ school note in his possession.” It might have first come into Smith’s possession as well during the five months after his reappointment, as during the two years previous.
The whole amount of the defalcation, including the $675, shown by the evidence to have been received by Smith after the expiration of the two years, was $3281.67, of which total, $1160.55 has been paid by his estate, and it is insisted further, by appellants, that the law should apply this $1160.55 first to the payment'of the $675, and then on the remainder of the defalcation, in accordance with the principle that where a creditor holds two debts against another, one secured and the other not, and a payment has been made by the debtor without application of it by either party, the law will apply it to the debt not secured, thus leaving $2121.12 as the amount of appellees’ liability.
We do not regard this a case for the appropriation of payments. There were no two debts here, and no opportunity for the application of payments, but a single indebtedness, which was merged in a judgment in favor of the creditor, to-wit: the allowance of the claim by the probate court, and the payment made was simply one on the judgment and a credit to be deducted therefrom.
Being of the opinion that the evidence shows here a liability against the appellees to the extent of the $1446.12 hereinbefore declared, and no further, the judgment will be reversed and the cause remanded.
Judgment reversed.