Daniel, Judge, after stating the case as above, proceeded : — The debt was originally contracted by Lewis, and the amount of the mistake is now the debt of his estate. The defendant personally never stipulated to pay it, although as agent he had renewed the notes at bank in the name of his principal. It was nearly two years after the defendant had closed his agency, and paid the balance of the funds in his hands to the executrix of his principal, before the mistake was discovered, or any demand made of the defendant concerning the same.
In an action for not paying over money paid to the agent for a plaintiff, defendant may show that the plaintiff, by his conduct, did not consider the defendant as holding the money on plaintiff’s account; and that the defendant appropriated the money properly to other purposes, before the plaintiff called on him for it. Stewart v. Fry, Holt, 372; 1 Saund. P. and E. 86. These, and the authorities referred to by the defendant’s counsel, show that the bank cannot sustain this action against the defendant. We think that the nonsuit was proper, and that the judgment must be affirmed. Per Curiam. Judgment affirmed.