The opinion of the court was delivered by Redeteld, J. Although it be true that the defendant, as postmaster at Woodstock, is liable, like other bailees for hire, for any loss, happening through his want of reasonable care and diligence, or in other words, for ordinary neglect, no recovery for any neglect, however gross, can be had in this form of action. He is here sued for money had and received. He must therefore have appropriated the money in some way, as men use their owm money.

It is not enough, in this form of action, that he put the letter carelessly into the wrong mail, or left it exposed in his office, where some one purloined it, without his acquiesence. For if the letter were, through his neglect, lost or destroyed, or in any other way, failed of reaching its proper destination, defendant would only be liable to a special action on the case for such neglect. We think, therefore, that the charge of the court below, to the jury, was correct.

The jury were told, ‘ that proving, ‘ merely, that the letter containing the money was delivered ‘ to the defendant, was not sufficient to entitle the plaintiff ‘ to recover. It must appear that the money actually came e to his use.’ This charge is further explained, but not substantially varied. It is not to be inferred, from the charge, that the money coming to defendants use, necessarily implies, some beneficial use, but only that it was put to his use, as if it were his own.

If he gave it away, or destroyed it, or broke open the letter and put the money into his pocket book, he would be liable, equally as if he paid it out for necessaries, or in payment of a just debt, but not merely from having missent the letter, or carelessly failed to send it at all. The charge was explicit, and liable to no misconstruction. Judgment affirmed.