
    Catterlin v. Somerville.
    Action.—Where money is paid but not credited on a judgment, and afterwards execution is issued thereon, and the whole amount collected by levy and sale of the property of the defendant, the latter may maintain an action against the plaintiff for the money so paid and not credited.
    Demand.—Where it is the duty of a party, by contract or otherwise, to remit or apply money in his hands without demand, no demand is necessary before suit against him for sue.h money.
    
      APPEAL from the Clinton Common Pleas.
    
      J. N. Sims, and McDonald £ Poache, for the appellant.
    
      B. P. Davidson, for the appellee.
   Perkins, J.

Fowler and Earl had a judgment against Somerville and others. Before its full satisfaction, the defendants paid to Sims, attorney, for Foioler and Earl, 100 dollars •on the judgment, taking a receipt which specified that the amount was paid to be credited on the judgment. Sims paid the 100 dollars to Catterlin, the agent of Fowler and Earl. It was not credited on the judgment. Afterwards an execution was taken out by Fowler and Earl, upon their judgment, and the whole amount collected from Somerville and others, the defendants in the judgment.

This suit is by Somerville and others against Catterlin to recover back the money paid him by Sims, which was paid to the latter by Somerville, &c.

The action for money had and received will lie in such a case; and that being so the judgment in the case at bar was right. Weisner v. Buckley, 15 Wend. 321; Smith v. Weeks, 26 Barb. (N. Y.) Rep. 492, where the eases on this subject generally are collected, and criticised; also, Chit, on Cont., 7th Am. ed., p. 639, note.

Ho demand was necessary before suit in this case.. An agent or trustee is, in general, not liable to his principal, or cestui que trust, without a demand; but Catterlin is not here sued by his principal; and, in cases where it is the duty of a party, by contract or otherwise, to1 remit or apply money in his hands without a demand, no demand is-necessary before suit. This was such a case. See, for authorities, Walworth v. Thompson, 6 Hill (N. Y.) Rep. 540; Stacy v. Graham, 14 (N. Y.) Rep. 492.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs. _  