From the testimony, it appears that the plaintiffs in error became the agents of the defendant, to negotiate a note of the defendant in one of the banks of Mobile, and to receive the money arising therefrom to Inis use. It does not appear that any instructions were given to the plaintiffs in error, to transmit the money from Mobile to the residence of the defendant in Sumter county, and none can be implied from the nature of the transaction. If, therefore, the money has been lost in the attempt to transmit it to the defendant in error, although kindly meant, and done with the best intentions, the loss must fall on the plaintiffs in error; and the law would be the same if the public mail had been resorted to instead of a private conveyance. In either case it would be exposing the defendant to a risk to which he had not consented.
*116It was argued by the counsel for the plaintiffs in error, that as the money was to be kept by the bailees without recompence, they are liable for gross negligence only; but the question whether they were guilty of gross negligence or not, in the transmission of this money, does not arise in this case; as they had no authority to transmit, in any mode, either express or implied. The contract was a deposit, or naked bailment of money, to be kept for the bailor, without recompence. If the bailees had remained passive, and the money had been lost from their possession, their liability would have depended on the ascertainment of the fact, whether the loss was caused by gross negligence on their part. Such not being the fact, the argument has no application to this case.
It is certa'nly true, that a bailee becomes liable to an action without any previous demand, whenever he converts the thing bailed to his own use, or it is lost or destroyed by gross negligence on his part; and the reason of this is apparent. The law never requires a nugatory act to be done; it is therefore unnecessary to demand a return of that which has ceased to exist, or which the bailee has put it out of his power to return, by his own act. In either case he has put an end to the contract of bailment by his own act, and become a wrong-doer. Is that the case here Í If it be conceded, as is perhaps the natural presumption, from the facts of this case, that the money is lost, is it not still in the power of the plaintiffs, if not to return the identical money they received, to discharge their obligation by the payment of the same sum, in money which must be of precisely equivalent value ? It would be a most harsh exposition of this rule of law, to say, that the attempted kindness of the plaintiffs in error, constituted them wrong-doers, and subjected them not only to the payment of the money, but to the expence of a law suit also.
It must, however, be confessed, that the cases must be very rare in this country, where a resort is had to the legal tribunals, that it is not perfectly well understood, that a demand would be fruitless. Very slight circumstances, therefore, would be sufficient to authorize the jury to infer a demand. Such an inference might have been drawn in this case, if it appeared in evidence that the plaintiffs in error denied their responsibility, or if they were apprized of the loss, and refused to pay.
Let the judgment be reversed, and the cause remanded.