¶1This cause eomes up on a bill of exceptions, according to the statute. The writ of error is waived by consent of the Attorney General and of the counsel of the plaintiff in error — no writ of error having, in fact, issued, as we suppose. As the case is a misdemeanor, we are willing to decide it, under the circumstances, without the writ of error.
¶2It appears by the transcript that the plaintiff in error was indicted as clerk of the Circuit Court of Coffee county, for this, that he collected certain money in his official capacity, in a case of the State against certain persons named in the indictment, which he failed and refused to pay within three days after demand, to the eounty treasurer, who was entitled to it. It appears by the bill of exceptions that this clerk, by his deputy, collected the amount in question in county claims, with the exception of two dollars in money, but there was no proof that any of this had gone into the hands of the plaintiff in error. The court charged the jury that a payment in eounty claims was a payment in money under the statute. This was erroneous. If a public officer must receive claims of this kind, they are not, therefore, money; they retain their identity, and he is not liable to pay out money in their stead. He was in-dieted for having collected and refused to pay money, to which the treasurer was entitled. He could not be convicted under *672this indictment for having collected and refused to pay over county claims, such as witnesses’ certificates: the proof must agree with the allegation. The judgment must be reversed for the error of this part of the charge, but the cause will be remanded, as it appears that the clerk by his deputy did receive some money. — See Clay’s Dig. 147, § 24, and ch. 7, § 9, of the Penal Code. The offence created by the last cited act is a misdemeanor. If the clerk’s deputy collected the money, a was a collection in legal estimation by the clerk himself, and he is liable accordingly.
¶3It is not necessary to decide whether a clerk is authorised to receive county claims in lieu of money, in such cases. That question cannot arise upon the present indictment.