¶1This was an action for the conversion by defendant of a sum of money alleged to have been left with him by the plaintiff’ as a special deposit.
¶2It is not an action ex contractu but ex delicto. Among other defenses, the appellant relied upon the statute of limitations, and if the cause of action accrued more than *281five years before tbe commencement of this suit, it was barred by the statute. "Wag. Stat., § 10, p. 918.
¶3The suit was instituted September 1st, 1871. Plaintiff’s evidence was to the effect that he made the deposit in June, 1864. He testified that on the 20th day of July, 1864, he demanded of defendant the package containing the money, and that he refused to deliver it to him. Defendant denied that any such deposit or demand was made. The court refused the' following instruction asked by defendant : If the jury believe from the evidence that before the raid upon defendant’s safe, in proof, plaintiff demanded the money in controversy of defendant, and that defendant after such demand and before the safe was robbed, declined to deliver such money to the plaintiff, the jury must find for the defendant. The evidence proved that the raid and robbery of the safe occurred the 20th day of July, 1864, and that instruction should have been given. Plaintiff alleges, as a reason and excuse for not having commenced his suit earlier, that defendant told him that his safe had been robbed by the bushwhackers, and the package containing his money taken off by them, and that he relied upon defendant’s said statements, which he did not, until the beginning of the year 1870, ascertain, as he then did, were falsely and fraudulently made by the defendant. Whether the case thus stated is within Wag. Stat., sec. 24, p. 920, it is not necessary to determine. If the plaintiff demanded of defendant his money on the 20th day of July, 1864, and defendant refused to deliver it to him, he then had a complete cause of action. The statute then commenced running, and the false and fraudulent representations made by the defendant did not prevent the plaintiff' from suing on that cause of action or the statute from continuing to run against it. If a demand was made for the package by the plaintiff' and defendant refused to deliver it to him, the fact that afterwards his safe was broken open and the package stolen would have constituted no *282defense whatever to an action by the depositor to recover' his money. The judgment of the circuit court is reversed and the cause remanded.
¶4Reversed.