
    Beardslee vs. Richardson.
    Whore a person received a sealed letter, containing an $100 bank bill, at New Orleans, and engaged to deliver it to the individual to whom it was addressed at Salina in this state, whose property he was told it was, it was held, that an action could not be sustained against the bailee on the common counts, without shewing that he broke the seal and appropriated the money to Ms own use.
    A bailee witlmit hire is liable for gross neglect only; but, it seems that if, on demand, he refuses or omits to deliver a packet entrusted to him, he is answerable, unless he can shew its loss without fault or negligence on his part.
    This was an action on the case, tried at the Onondaga circuit in March, 1832, before the Hon. Daniel Moseley, one of the circuit judges.
    The declaration contains several special counts ; in the one principally relied on, it is stated that the plaintiff delivered to the defendant abank note for $100, the property of the plaintiff, which the defendant undertook and promised to take care of, and safely carry from New Orleans to the town of f Salina in this state, and there deliver the same to the plaintiff in a reasonable time then next following; it is then averred, that although a reasonable time had elapsed, &c. the defendant did not and would not, although often requested, &c. safely and securely carry the bank note from New Orleans to Salina, but wholly neglected and refused so to do. The declaration also contains the common money counts. On the trial, the plaintiff produced the deposition of William Beardslee, taken at New Orleans, who stated that in the spring of 1829, at New Orleans, he delivered to the defendant a sealed letter addressed to the plaintiff, James Beardslee, at Salina in this state, containing a United States Bank bill for $100, and informed the defendant of the contents of the letter, and that the bill belonged to the plaintiff; and that the defendant promised to deliver the letter to the plaintiff as soon as he arrived at Salina, stating that he was going to Auburn, and would proceed to Salina and deliver the letter to the plaintiff. It was further proved, that about the 1st of May, 1829, the defendant was at Auburn, and that this suit was commenced in May, 1830. The judge refused to nonsuit the plaintiff, and charged the jury that although the plaintiff was not entitled to recover on the special counts of his declaration, yet he would submit to them whether he was not entitled to recover on the money counts. He remarked that the plaintiff having shewn the placing of the letter containing the bank note in the hands of the defendant, his promise to deliver it, his arrival at Auburn, and the lapse of a year thereafter previous to the commencement of the suit it was left to them to say whether a demand might not be presumed, if a demand was necessary. And he further instructed the jury, that although the defendant was a bailee without hire, yet the facts shewn seemed to impose upon him the necessity of making some proof accounting for the letter and bank note. The jury found a verdict for the plaintiff for $ 114. The defendant moves for a new trial.
    J. A. Spencer, for the defendant.
    C. P. Kirkland, for the plaintiff.
   *By the Court,

Savage, Ch. J.

If the defendant was liable upon the money counts, he was not liable as bailee but as having received the money of the plaintiff for his use. The evidence does not prove that fact, nor does it show that he received it otherwise than in a sealed letter. It cannot be said to be money in the defendant’s hands ; unless he broke the seal, it could not answer the purposes of money, and there is no evidence of such act.

It was a sealed package of the value of $100, which the defendant as bailee, without reward, undertook to deliver. It was held at the circuit and I think correctly, that the plaintiff could not recover upon his special counts which charged the defendant as bailee. The defendant was liable for gross neglect only ; and whether he was guilty of any neglect, does not sufficiently appear from the testimony. It does not appear that any demand was made, or application of any kind until the suit was brought. The plaintiff was bound to show that the money was lost by the defendant’s negligence, or could not be obtained on request. Had he shown a demand and refusal, the defendant, I think, would have been bound to account for the loss, and to indemnify the plaintiff, unless he could show the property lost without fault on his part, that is, without gross negligence.

New trial granted -; costs to abide event.  