Hill's Adm'r v. Kennedy

32 Ala. 523

Opinion

WALKED, J.

Notwithstanding the defendant received current bank-bills, he is liable in an action for money had and received, if he used them, or treated them as money. — Stewart v. Conner, 9 Ala. 803. The evidence conduces to show that the defendant did treat them as money. It was not competent for the court to assume that there was no testimony, from which the jury might infer that the defendant had used the bank-bills as money. Williams v. Harrison, 19 Ala. 286.

[2.] The charge of the court is not defensible, upon the ground that there was no proof of a demand. But, if there had been no demand, the evidence conduced to show a conversion, which would have dispensed with the' necessity of proving the demand. The bill of exceptions does not disclose with certainty whether the demand or conversion was before the commencement of the suit. It was proper to have left that question to the jury, with instructions that they should not find for the plaintiff unless the evidence showed there was a demand or conversion before the commencement of the suit.

The judgment of the court below is reversed, and the cause is remanded.