#### *Oliver*Simpson, *Adm'r. of Michael*Ryan, deceased, *vs. John Barry.*

Where money has been placed in the hands of a patty, as agent or bailee, tvith instructions, for a particular purpose, and the bailee has acted in pursuance of these instructions, tire Administrator of the person placing the funds, cannot sustain an action of assumpsit against the bailee, for the particular fund.

*Before*O’Neall. J., *at*Edgefield, *Extra*Term, January, 1842.

This was an action of assumpsit. The facts which were brought out, without any objection as to the state of the pleadings, were as follows : The deceased was a Roman Catholic; the defendant is understood to be a Priest of the *370same communion. The deceased, some time before Ins death, placed in his hands $170, to be deposited in one of the Augusta banks, for safe keeping, which was done. In his last illness, the defendant visited the deceased, and he directed him to keep $30 or $40 for charity, and the balance to send to his mother, in Ireland. The deceased died at the house of the plaintiff, in Hamburg, South Carolina.— The defendant then was, and still is, a resident of Augusta, Georgia. He produced in evidence, a Power of Attorney from the deceased’s mother, authorizing him. to collect his entire estate. The plaintiff administered in South Carolina, and arrested'the defendant with a bail writ, in Hamburg. This writ was returnable to March Term, 1840. On the 8th of September, 1840, the defendant administered in Georgia.

The presiding Judge held, that inasmuch as the fund in dispute was on deposite in one of the banks of Augusta, Georgia, the plaintiff’s administration in South Carolina gave him no right to its administration; and this was more especially the case after the defendant had administered in Georgia. The counsel for the plaintiff submitted to a non-suit, with leave to move the Court of Appeals to set it aside, which he now does, on the accompanying grounds:

1. Because the residence of the intestate being in South Carolina, drew within the jurisdiction his chattels and credits ; and the plaintiff, as the administrator, was entitled to the possession of them.

2. Because the grant of administration to plaintiff, being prior in date to the grant of administration to defendant, the title to the fund in question had been fixed in the plaintiff, and could not be divested by the subsequent administration of the defendant.

3. Because the grant of administration to the defendant, after the commencement of the suit, constituted no defence, inasmuch as the case must be determined by the state of things at the commencement of the suit.

4. Because the defence of defendant should have been made by plea puis *darrien continuance,*and could not be made under the general issue, which was the only plea pleaded.

*371Carroll, for the motion,

cited and relied on Story’s Treatise, 272; also from 431,432, in a note. 7 John. Chan. Hep., 48; 1 Williams on Executors; 2 Bail. Rep. 438; Rice Rep., 314.

Griffin, contra,

referred to 1 N. *&*McC., 237; 1 Chitt, Black. 433. Story’s Con. Laws, 433, 13 Chap., 2d edit.; 7 Johns. Chan. 45; 1 ib., 153 ; 2 Mass.; 3 ib., 413.

*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.