M'Gillicuddy v. Cook

| Ind. | Nov 19, 1839

Sullivan, J.

Assumpsit. On the trial of this cause m the Circuit Court, the plaintiff proved that in July, 1835, his intestate, Eallihan, being then on his death-bed, delivered to the defendant a sum of money, supposed to be fifty dollars, to be sent to the uncle of Eallihan, in Ireland, for the use of his (Eds) wife. The defendant received the money and said he would send it as directed. About three days thereafter, Eallihan died. This was all the testimony in the case, and, upon it, the Circuit Court gave judgment for the defendant.

In whatever light we view this case, the judgment of the Circuit Court must be affirmed. If the delivery to the defendant was a naked bailment, countermandable at the pleasure of Eallihan or his administrator, an action will not lie against the defendant until he is notified of the countei-mand, and a return of the property demanded. Story on Bailment, ch. 2, sec. 107. Were the law otherwise, a bailee who undertakes without compensation to convey money or other property from one man to another, might be sued and harassed by the bailor- without having committed any wrong whatever. Or if it is to be regarded as a gift mortis causa, the property vested in the wife by the delivery to the defendant, it was in the nature of a legacy to her, and the plaintiff, as he has not shown that it is needed for the payment of debts, has no claim upon it. 1 Ch, Gen.. Pr. 105.—Miller v. Miller, 3 P. Will. 356.

H. Cooper, for the plaintiff. T. Johnson, for the defendant. Per Curiam.

The judgment is affirmed, with 3 per cent. damages and costs.