majority">Wilson, Oh. J.

By the Court The plaintiff was tried by • a jury, before the defendant, a justice of the peace, on a criminal charge, and convicted. For the purpose of appealing from the judgment, he voluntarily, and in ignorance of his legal rights, paid to the defendant the costs of the prosecution, and two dollars as justice fees for returning the case.

On the appeal, the criminal action was dismissed by the District Court, on account of the insufficiency of the complaint.

The present action, commenced to recover back the costs and fees thus paid, was removed by appeal from the justice court into the district court. In the latter court, there was no proof offered by the plaintiff that a. demand was made before the commencement of the action that the costs and fees should be paid back, and, on motion of the defendant, the action was dismissed; the cause was removed into this court by an appeal from the judgment of dismissal.

It was not the duty of the pdaintiff to advance the costs and fees, but having done so, there was nothing illegal or wrong in the defendant’s receiving them, and we must presume, in the absence of evidence to the contrary, that he received them for the use of those legally, entitled thereto. Under such circumstances, no fraud, wrong, or even mistake, oh the part of the defendant, being proven, it would be most unjust to subject hini to an action, without notice that the plaintiff wished or demanded the money to be paid back, or after he had honestly paid it over to others entitled to receive it. The law on this subject is, we think, correctly laid down in 1 American Lead. Cases, 3d Edition, 672, in the following language: “ With regard to the question of the liability generally of an agent or receiver to an action for money in his hands, without a demand, there is a *187considerable diversity of opinion ; but the true distinction appears to turn upon the question whether or not, by the nature of the agency, it is his duty to pay over -immediately on the receipt of the money.” There was no understanding that this money should be paid back; on the contrary, the plaintiffs conduct justified the defendant in believing that such repayment was not desired.

The defendant received the money as trustee — at least that portion of it not going to himself — and having done nothing amounting to an abuse of the trust, or inconsistent with the understanding or agreement of the parties, he is not liable without a demand. See, also, Abbott vs. Draper, 4 Denio, 53 ; Walrath vs. Thompson, 6 Hill, 540.

Judgment affirmed.

McMillan, J. — I concur in the conclusion arrived at in this case.

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