This is an action brought by the United States, plaintiff in error, against II. E. Honsman, and the sureties upon his official bond, as postmaster, defendants in error, *582 to recover the sum of $2,235.63. The record shows that Honsman was postmaster at Missoula, Mont, from January 21, 1890, until February 13, 1891, when he was removed from office; that, when he entered upon the discharge of his official duties, he executed a bond, with sureties, as required by law; that prior to August 8,1890, the post-office department required him to execute, a new bond, and on the 8th day of August, 1890, he executed a new bond, with sureties, Avhich is the bond sued on in this action; that the new bond was accepted on the- 20th day of August, 1890, by the postmaster general, to take effect October 1,1890.

The cause was tried before the judge without a jury. At the trial the United States introduced in evidence:

Did the court err in so ruling? This is the only assignment oí error presented by the record.

Section 3835 of the Revised Statutes of the United States reads as follows :

Section 3837 reads as follows;

It is conceded by counsel for tlie plaintiff in error that the sureties upon the second bond cannot be held liable for any defalcation of the postmaster which occurred prior to the time the second bond took effect, to wit, prior to October 1, 1890. The supreme court of the United States lias repeatedly held that by no act of the officer or of the treasury department, or of both combined, can official moneys, collected by the officer and paid into the treasury department during one term of office, be appropriated to the accounts of the other term, to tlie prejudice of the sureties for the respective terms. U. S. v. January, 7 Cranch, 572, 575 ; U. S. v. Eckford’s Ex’rs, 1 How. 250, 262 ; Jones v. U. S., 7 How. 681, 688 ; U. S. v. Stone, 106 U. S. 525, 529 , 1 Sup. Ct. 287. .But in the present case there is no attempt upon the part of the government to make the new bond retroactive, or to make the sureties flier eon liable for any defalcation of the postmaster prior to the time the new bond took effect'. Its contention is that the presumption necessarily arises from the evidence that the sum of §1,689.85, which was the balance due on account of the money-order business, on the settlement of the .postmaster’s quarterly account for the quarter ending September 30, 1890, remained in his hands on the 1st day of October, 1890, when the new bond took effect. If that money was in his hands on the 1st day of October, 1890, it is made certain and clear, by the provisions of section 3837, that the sureties upon the old bond were then released of all liability on account thereof, and the sureties upon the new bond would be liable therefor. Upon such a state of facts, there can be no question as to the right of the proper authorities, under the provisions of section 3835, to apply the sum of ft,689.85 out of the amount of $2,442, paid by the postmaster to the department on the 11th day of October, 1890, to (lie discharge of the balance due the government at the close of the quarter ending September 30, 1890.

Section 8816 of the Revised Statutes provides that:

The treasury transcript, introduced by the government, was prima facie evidence that the money dno from the postmaster at the close of the quarter ending September 30th remained and was in his hands on the 1st day of October, 1890. It was the money of the government. There is no presumption that the postmaster was at the close of the last quarter a defaulter, and, without any proof to the contrary, the presumption is that the postmaster held the money in Id's hands until October 11, 1890, and ¡.hen forwarded the same, with other money due the government, to the post-office department.

Upon these presumptions, which are well established by the decided cases, it necessarily follows that the sureties upon the second bond were not entitled to have the sum of $1,689.85 allowed as a credit on their behalf, and that tlie court erred in so ruling.

*584 In Alvord v. U. S., 13 Blatchf. 279 , Fed. Cas. No. 269, the facts were that Alvord was surety upon the official bond of postmaster Sedgwick; that on the 14th of September, 1861, a new bond, Avith other sureties, was accepted; that afterwards Sedgwick was removed from office, and at the time of removal was indebted to the government; that it was not shown that Sedgwick did not Imve in his hands on the 14th of September, 1861, when the new bond took effect, all moneys of the United States with which he Avas then chargeable. The court held that it must be presumed that he had such money in his hands Avhen the new bond aa'us given, and that the sureties upon the old bond could not be held liable. In delivering the opinion, the court said:

In Bruce v. U. S., 17 How. 437, 443 , wbicb' was a case of a new commission and a new bond of an Indian agent, it Avas beld that, if a balance was due from the officer when reappointed, the presumption was that it was then in his hands; and, if so, the sureties under his reappointment would be responsible for its due application. Chief Justice Taney, in'delivering the opinion of the court, said:

In U. S. v. Stone, 106 U. S. 525, 529 , 1 Sup. Ct. 287, wbicb was an action upon tbe official bond of a collector of internal revenue, the court said:

.In tlie present case the sureties did not offer any proof tending to ¡show that the postmaster did not have in his hands the sum oí ⅜ 1,(589.85, belonging to the government, at the time the new bond took effect. The case rested solely upon the prima facie evidence introduced by tlie government. In order to relieve themselves from responsibility, it was essential for tlie sureties to.prove, by circumstances or otherwise, “that the default charged occurred before the commencement of their liability.”

The judgment of the circuit court is reversed, and cause remanded for a new trial, in accordance with the views expressed in this opinion.