¶1The facts of this case seem to bring it very fully within the influence of the decision made in that of Sally v. Capps, [1 Ala. Rep. N. S., 101,] unless a distinction can be drawn from the circumstance, that here, the agent took notes in his own name for the sum of money coming to his principal. We believe it has uniformly been held, in this Court and elsewhere, that an agent or factor may take notes payable to himself, on account of property sold for his principal, without being thereby made liable, as in case of a conversion.
¶2This principle was so ruled in the case of Goldthwaitev McWhorter, [5 S. & P. 284,] and it seems to be applicable to the state of evidence before the jury. The mere circumstance that an agent takes anote in his ovm name, for a sum of money coming to his principal, is not, by itself, evidence of a conversion. In such a case, we apprehend, the principal could at any time claim to have the note transferred to him, and if refused, the agent at once would become liable as for a conversion ; but if ho acquiesces and permits the agent to receive the money, he is not entitled to his action, without a demand or something equivalent to it, showing the agent wrongfully withholds the money. [See Stewart, et als. v. Frazer, decided at this term.]
¶3Let the judgment be reversed, and the cause remanded.