Patty vs. Milne, 16 Wend. 557

By the Court, Bronson, J. The judge decided correctly, The one thousand dollars, sent to the defendant on the 10th of September, 1833, was the money of the plaintiff, and he had a perfect right to direct its application. The defendant received the money to the plaintiff’s use, and had no more right to apply it on the account of Bostwick, Gregory & Co. than he had to make any other disposition of the amount for his own benefit. He received the draft through the cashier of the bank, with advice that he was to account for the money to the plaintiff.

He also received specific instructions from the plaintiff as to the application of the money, and then deliberately misappropriated the amount; and the plaintiff, after protest, was obliged to pay and take up the note. His right of action was then complete. The fact that the defendant credited the money to BoslwickT Gregory Co,, and afterwards allowed the amount in a settlement with them, cannot alter the- case. He had done a wrong to the plaintiff, and could not discharge himself from liability by any subsequent transaction with third persons.

If be has lost the whole or any part of the money,, the loss is his own, and he cannot throw it off upon another. Nor could he, by misapplying the money, and suffering the note to go back protested, render it incumbent on the plaintiff to give notice that he should insist on his rights.

If the plaintiff knew, in September, that the money had been misapplied, neither his subsequent silence, nor his omission to sue for five months could discharge the defendant! ■ But although the note came back protested, and the plaintiff took it up on the 26th of September, it does not appear that he then knew what had become of the money he had remitted. He may not have ascertained that fact until the suit was instituted in February. A demand, before suit brought, was not necessary.

Ifi for any reason not growing out of his misconduct, the defendant had been unable to apply the money according to instructions, he should have been requested to refund. A demand might then have been necessary to put him in the wrong. But here he was wrong from the outset, and a request to refund the money before suit brought was unnecessary. It is said that the five hundred dollars, paid by the defendant on his acceptance, was not the money of the plaintiff, and that as to so much the verdict was clearly wrong. The objection cannot be maintained. It was the duty of the makers to take up the note at maturity.

Instead of sending the money, they forwarded other paper, which the plaintiff procured to be discounted on his own credit and for his own benefit. The avails of the new paper were as much the plaintiff's money, for the purpose of taking up the note,- as were the funds which he-raised on his own note, discounted at the same time. If he had not taken up the original note, he would have been answerable over to BosLwick, Gregory & Co. for the amount of the new securities. But he did take it up.

The defendant accepted the five hundred dollar draft for the accommodation of the drawers, but it does not appear that the plaintiff knew any thing about the transactions between Bostwich, Gregory & Co. and the defendant. The money to take up the original note was not sent to the defendant on account of any supposed connexion or business transactions between him and the makers, but simply because the note was payable at the defendant’s office.

The question is the same that it would have been, if the five hundred dollar dráft had been made on funds in the hands of the defendant, or had been drawn on some third person, and paid for the accommodation of the drawers. If the draft had not been accepted and paid, the plaintiff would have been obliged to take it up as endorser. But having been paid, it was his money for the purpose of taking up the note. New trial denied.