#### ANDERSON *v.*FORESMAN.

Bailee — carrying money without reward — robbery—search—evidence—conversion.

A bailee without reward is excused, if the lost goods were taken the same care of, that he-took of his own.

When a person is robbed, and immediately gives notice, institutes a search, commences a prosecution and proceeds to conviction, one or all of these circumstances may be given in evidence, as a part of the transaction.

A bailee of money who has used it, intending to replace it by other money of which he is robbed, by the use has changed the bailment and must bear the loss.

Where part of the money has been recovered from the thief, offered to the plaintiff, been refused, and brought into the court, that may be shown without notice of setoff.

Assumpsit for money had and received. Issue on non assumpsit. Three hundred dollars was given to the defendant in Maysville, Kentucky, to bring to the plaintiff in Cincinnati, as a friendly act without reward; although he gave a receipt for the money. The defence is, that the money was stolen from the defendant while on the steamboat during the trip down. The receipt was read.

*Fox,*for the defendant,

offered to prove the declarations of the defendant on the boat, thathe.had been robbed, a consequent search, and the prosecution and conviction of the thieves.

*Van Matre,*objected.

*Doty,*

swore that he apprehended a man charged with the larceny, found a f> 100 note on him, corresponding to the one described, given to the defendant-in Maysville; it is now here, having been offered to the plaintiff and refused, because the whole sum lost was not offered.

*Fox,*

then offered evidence, that about that time there were several robberies.

*Van Matre,*

objected, and it was ruled out.

The record of the conviction of the thief, was then offered, with evidence that the defendant prosecuted.

*Van Matre,*

objected.

*Kyle*and *Van Matre,*for the plaintiff.

Lane, J.

That a person robbed, instantly states the fact, institutes a search, and prosecutes the offender, are circumstances for the jury. It would be difficult to establish such facts except by the attending circumstances. Such evidence is competent, as it would be for the plaintiff to show that at the time of the alleged robbery, the defendant remained silent, neither instituting search or prosecution.

Lane, J.

A man must prosecute the thief who steals from him, or there can be no conviction — if he do so, and acts like an honest man, are his honest and proper acts inadmissible to show the fact of the larceny and conviction? It would seem to us unreasonable, if it were so. The objection is overruled.

*599
      *Fox,*contra.

Lane, J.

to the jury. A person who takes bank notes to carry for another without reward, is bound to take the same care of them he does of his own. If he does not take such care and loss ensues, he is liable; if he takes such care and is robbed, the loss is not his. If such bailee use the money given to him and substitute other money, which is stolen, the money he took becomes a debt for which he is liable. The $100 note you may throw out of view. If the defendant is liable at all, he is liable for the whole that was stolen — if not so liable, the *$100*note is the plaintiff’s property, has been offered to him and he refused it, and is now in court for him to take if he choose, or if he still refuse, the defendant will hold it for his use when he demands it.

Yerdict and judgment for the defendant. The plaintiff then took the *$100.*