Curia, per O’Neall, J. If it be true that the money of the deceased was deposited by the defendant in one of the banks of Augusta, Georgia, in his own name (and it is perhaps in this point of view, on a non-suit, that the case should be regarded,) it is then necessary to inquire, whether this case can be sustained 1 The defendant, it must be remembered, was the agent and baillee of the deceased; he acted in precise conformity to his instructions, and it is plain that the deceased would have had.no right of action, unless the defendant had refused, upon demand made, to account for the fund.
The present plaintiff has no other or greater rights than his intestate. The defendant could not, therefore, be regarded as debtor to the deceased, until he had in some way appropriated his money to his own use. No demand was proved, This is enough to show that the action now under consideration cannot be sustained. It is, therefore, unnecessary to consider the effect of the two administrations in Georgia and South Carolina. . ' The motion is dismissed. Evans, Earle and Butler, JJ., concurred.