
    Ferguson v. Dunn’s Administrator.
    Money Had and Received. — A sued B for money had and received, at Ms special instance and request, &c. The evidence showed that A had sent to B the money sued for, with directions to loan it, and that B had applied it to Ms own use.
    
      Held, that the evidence sustained the complaint.
    
      Held, also, that no demand was necessary before suit.
    APPEAL from the Fountain Common Pleas.
   Gregory, J.

— Dunn’s administrator sued Mrs. Ferguson for money had and received of and from the intestate in his lifetime, at her special instance and request. The defendant answered by the general denial and set-off. Issues were taken. Trial by jury. Verdict for the plaintiff. Motion for a new trial overruled. The evidence is in the record.

M. Milford, for appellant.

T. F. Davidson, for appellee.

Dunn, in his lifetime, remitted to Mrs. Ferguson a sum of money, with directions to loan it. The latter failed to loan the money, but used it herself. It is claimed that there is a failure in proof; that the money was not placed in the hands of the defendant at her special instance and request. This is immaterial.

It is further claimed that the appellant was a naked bailee, without compensation, and that no action can he maintained against her until after a demand and refusal. Yo demand was necessary. Spencer v. Morgan, 5 Ind. 146; Robinson v. Skipworth, 23 Ind. 311. The money was sent to Mrs. Ferguson by Dunn for a particular purpose, to which she refused to apply it, and converted it to her own use. The action for money had and received lies in such a case. The law will, and always does, raise an assumpsit from the misapplication of money received to the use of another. Dumond’s Admr. v. Carpenter, 3 John. 183.

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