#### SARAH HAYS vs. SAMUEL SMITH.

When a demand id made for payment of an agent, who haa collected money,- and he fails to pay, that failure is in law a refusal to pay, so as to entitle' the principal to his action against the agent.

Appeal from the Superior Court of Law of Buncombe County at Spring Term, 1844, his Honor Judge Settle presiding.

This was an action of assumpsit. The declaration contained two counts. First, on a special promise and undertaking, that, in consideration the plaintiff would trust and confide to the defendant’s care a note for $80 against one New-land, lie, the defendant, would use ordinary diligence in collecting and paying OYer the same; whereupon the said note was put into his hands for collection, and he had failed, through gross negligence, to collect and pay OYer the same. The second count was for money had and received by the defendant to the plaintiff’s use. Plea,- non assumpsit. The evidence was, that a note against Newland for $80 was put by the plaintiff into the hands of the defendant to collect, and that he undertook to collect the same, and that he subsequently acknowledged he had received $60 of the money. It was also in evidence, that the defendant delivered up this note to the debtor and gave him a receipt for the amount; aild that he received from Newland a note of one M’Craw for $800, out of which he had collected $640.- The plaintiff, by her agent, demanded of the defendant the money due to her. He failed to pay it, stating that he had not the money by him.■ The court charged the jury upon the first count, that if the defendant omitted to collect the debt from Newland, by failing to use such diligence as a man of common and ordinary prudence would use in the mana.gem.eiit of his own business, then the plaintiff was entitled to recover. On the second count the court charged the jury, that, if the defendant had collected the *255debt from Newland or any part of it, the plaintiff was enti-lied to recover such part. And the Court charged, that the demand, which was made on the defendant, was sufficient.

The jury gave a verdict for the plaintiff for the amount of the note and interest. Judgment was rendered accordingly, and the defendant appealed.

No counsel appeared for either party in this Court.

Daniel, J.

We have examined the whole1 charge of the Judge, and it seems to us1 to1 be free from any error in law. When the demand was made, the defendant, it is true, did not deny the1 debt, but he failed to pay it; and that failure, in law, was a refusal to pay, so as to enable the plaintiff to commence her action. The judgment must be affirmed.

Per Curiam,. Judgment affirmed.