
    HILL’S ADM’R vs. KENNEDY.
    [ACTION FOR MONET HAD AND RECEIVED.]
    1. When action lies against receiver of hank-bills.- — An action for money Lad and received lies against one who received current hank-bills for the use of another, on proof that he used or treated them as money.
    2. When demand is necessary. — In such action, proof of a conversion by the ■defendant before suit brought dispenses with the necessity of a demand.
    Appeal from tbe Circuit Court of Bibb,
    Tried before tbe Hon. C. W. RapieR.
    This action was brought by Samuel W. Davidson, as tbe administrator of Pleasant Hill, deceased, against Josiab S. Kennedy. No pleas appear in tbe record. The evidence adduced on tbe trial, as set out in tbe bill of exceptions, was substantially as follows: Tbe plaintiff proved, that be sold six bales of cotton, belonging to his intestate’s estate, to Philpot & Lapsley, of Selma, and directed them to send tbe proceeds, which amounted to $219, by tbe bands of tbe defendant, on bis return from Mobile to Centreville; that tbe money was counted out by one of tbe partners of tbe firm of Philpot & Lapsley, and banded to one Alexander, their book-keeper, with instructions to deliver it to tbe defendant, who was then about leaving Selma, on tbe railroad, on bis return to Centreville. Alexander testified, that be went to tbe railroad depot with tbe money, and there banded it to the defendant, together with tbe account of sales, in an unsealed envelope directed to Bernhard & Davidson; that tbe defendant, on receiving it, jestingly said, “Are you not afraid that I will run away with so much money?” and that tbe money was in current bank-bills, mostly of Georgia banks, with perhaps some few of tbe South Carolina banks. Tbe plaintiff’s agent afterwards called on Philpot & Lapsley for tbe money, and, on being informed that they had sent it by the defendant, “ called on defendant for the money, who stated that be bad not got it.” Bernhard, one of tbe firm of Bernhard & Davidson, also testified, “that, having been informed that Philpot & Lapsley had sent the money to them by the defendant, he called on the defendant for the money, who stated to him that he had no recollection of having received it, but that if he did receive it, it must have been at the clerk’s office at the warehouse of the railroad depot at Selma.” The court charged the jury, “that upon the evidence aforesaid, they must find a verdict for the defendant;” to which charge the plaintiff excepted, and which he now assigns as error.
    JohN E. Vary, for the appellant.
    I. W. G-ARROtt, and J. B. JohN, contra.
    
   WALKED, J.

Notwithstanding the defendant received current bank-bills, he is liable in an action for money had and received, if he used them, or treated them as money. — Stewart v. Conner, 9 Ala. 803. The evidence conduces to show that the defendant did treat them as money. It was not competent for the court to assume that there was no testimony, from which the jury might infer that the defendant had used the bank-bills as money. Williams v. Harrison, 19 Ala. 286.

The charge of the court is not defensible, upon the ground that there was no proof of a demand. But, if there had been no demand, the evidence conduced to show a conversion, which would have dispensed with the' necessity of proving the demand. The bill of exceptions does not disclose with certainty whether the demand or conversion was before the commencement of the suit. It was proper to have left that question to the jury, with instructions that they should not find for the plaintiff unless the evidence showed there was a demand or conversion before the commencement of the suit.

The judgment of the court below is reversed, and the cause is remanded.  