
    Torry against Holmes and another.
    
      A, a manufacturer in this state, desirous of procuring brass and machinery for his manufacturing establishment, and intending to go to England for that purpose, negotiated through Cand D, commission merchants in New. York, with B, a merchant residing there, who had a mercantile establish, ment in England, conducted by his agent E, for a credit to a certain amount. As a part of this negotiation, C and X) addressed a note to B, stating that A was in New-York, about to embark for England, and added: “For him you will prepare letters that he may procure his machinery, brass, &c. and that it may be shipped to us. We want your letters this afternoon.” B immediately sent C and D a letter, addressed to E, in England, introducing A to him, stating A’s object, and adding: “Please to do all in your power to facilitate his business; and, for this purpose, you are hereby authorized to accept his drafts to the extent of 6001. sterling ; and ship the goods for which he may so draw, to Messrs. C and D of this city, forwarding invoice and bill of lading to them.” With this letter, A proceeded to England, and presented it to E, who, from time to time, on A’s request, furnished him with goods and money to the amount of 3791. sterling, which were entered on the books of E, as furnished to or for A. Some months afterwards, entries of the same goods and money were made on the books of B, in New-York, to the debit of C and D; and copies of such entries were sent to them for payment, who replied, that “ as soon as they re-ccived the amount from A, they would hand it over to BAfter the return of A, he remitted to C and D 3000 dollars, to be applied to the payment of such advances ; but C and D failed, and never paid over to B any part of the money so remitted. In assumpsit by B against A, it was held, 1. That the letter of B, addressed to E, was a letter of credit, in the ordinary acceptation of that term; 2. That for the advances made under it, A was prima facie liable as the principal debtor, unless it appeared from other evidence, that the credit was in fact given to C and D; 3. That the entries on the books of B to C and D, with the presentment to them for payment, and their reply, did not furnish conclusive evidence, that the credit was given to C and D alone, as original debtors: 4. That upon the facts in the case, C and D were not, by law, constituted the agents of B to receive the money due from A, so that the remittance made by A to C and D, on that account, should, of course, discharge C and D from all liability to B; but the question whether an agency to receive the money was created, by the conduct and acts of the parties, was open, as a question of fact, to be passed upon by the jury.
    New-Haven.
    July, 1835.
    A point of law not made and overruled, on the trial of the cause, is not a ground for a new trial.
    This was an action of assumpsit for money lent and advanced ; for money paid, laid out and expended; for money had and received, &c.
    The cause was tried, at New-Haven, August term, 1834, before Daggett, Ch. J.
    The plaintiff, during the year 1832, until the 12th of July, when he failed, and assigned his property for the benefit of his creditors, was transacting business in Neto- York, under the name of Wm. Torry Jr. &• Co., and in Birmingham, England, under the name of A. W. Gillett; a person of that name, now deceased, having been a former partner of the plaintiff in both establishments. The latter establishment was conducted by Henry E. Thomas, as agent for the plaintiff. The defendants were manufacturers in company, under the firm of Holmes & Hotchkiss, at Waterbary, in this state; and being desirous of procuring brass and machinery for their establishment, sent out the defendant, Holmes, to England, to purchase them.
    The plaintiff claimed to have proved, that the defendants, through James <§• Casxoell, commission merchants in New-Yorlc, as their agents and sureties, negotiated with the plaintiff for a credit to Holmes, in England, to such an amount as might be required for his purpose.
    
      Holmes having arrived in the city of New- York, and being about to take passage for England, James &f Caswell, on the 23d of March, 1832, left, at the counting-room of the plaintiff, a note addressed to him in these words : “ Mr. Israel Holmes, of the firm of Holmes Hotchkiss, Conn., is here, and will leave in the packet of to-morrow. For him you will prepare letters, that he may procure his machinery, brass, &c., and that it may be shipped to us. We want your letters this afternoon. Yours,
    [signed] James &f Casxoell.”
    
      “ Machinery may cost about $800 ; brass 500 to 1200 ; possibly other affairs 300 to 400.
    Mr. Tony — 23rd March."
    
    After the reception of this note by the plaintiff, he prepared and sent to the counting-room of James fy Caswell, for Holmes, a letter of credit, addressed to Thomas, the agent of the plaintiff, in Birmingham, in the following terms:
    
      u Nexo-York, March 23d, 1832.
    Dear Sir,
    Permit us to introduce to you Mr. Israel Holmes, of the firm of Holmes <§• Hotchkiss, who intends to visit Birmixig-ham, and transact business relative to his manufacturing concerns here. It is his intention to examine and procure machinery, &c. Please do all in your power to facilitate his business ; and for this purpose, you are hereby authorized to accept his drafts to the extent of 600Z. sterling ; and ship the goods, for which he may so draw, to Messrs. Jaxnes Sf Cas-well of this city, forwarding invoice and bill of lading to them.
    Yours, respectfully,
    
      Wm. Torry Jr. Co.
    
    
      Mr. Henry E. Thomas, Birmingham.”
    
    With this letter, Holmes proceeded to England, and presented it to Thomas, who, from time to time, on Holmes’s request, furnished him with the cash and merchandize, and aided him, by other expenditures and services, specified in the plaintiff’s bill of particulars exhibited on the trial. The goods so purchased, to the amount of 3791. only, were shipped to James <£• Caswell, accompanied by invoices, as directed in the letter of credit. The cash received by Holmes was applied to the payment of his expences, passages for himself and workmen procured in Engand for the defendants’ establishment, &c.; the charges of the plaintiff for furnishing such advances and facilities in England being according to the customary rates ; no part of which has ever been repaid to the plaintiff. These advances were charged on the books of the plaintiff’s establishment in Birmingham as “ Cash paid J Holmes’’— “ paid Francis Smith & Co. on account of J Holmes” — “ To shipping charges on goods for Holmes Sf Hotchkiss’’ &c.
    In connection with these facts, the plaintiff exhibited other evidence, tending to prove, and claimed that he had proved, that the advances were all made on the credit of the defendants as principals ; and that James Caswell were sureties for them, so far as such advances had been made in conformity with their written request, and the letter of credit given in pursuance thereof.
    The defendants, on the other hand, claimed to have proved, that the letter of credit was applied for and furnished, by the plaintiff, to James Sf Castcell, on their own credit, as principals, and not on the credit of the defendants ; and that the advances in England, made to Holmes, were made upon the credit of James Sf Caswell, and that the defendants became indebted for them to James ij* Caswell, and not to the plaintiff.
    It appeared, that on the ISth of August, and on the 8th of September, 1832, certain entries, exhibited on the trial, were made in the plaintiff’s book in Neto- York, by the book-keeper then in the employment of the plaintiff’s assignees ; and that copies thereof were sent, by those assigness, to James Sf Cas-well in New- York, for payment, who replied, that as soon as they received the amount from the defendants, they would immediately hand it over to said assignees. It further appeared, that on the 27th of Avgust, 1832, James Sf Caswell addressed to the defendants, at Waterbury, a letter of the following tenor : “ The balance of your goods will probably be here, in a day or two, and will claim our attention, by way of entry and forwarding. In the mean time, you will prepare us with the means of adjusting with Mr. Torry; which will not be done, however, till the goods are in hand ; but this may be ex- - pected every day.” Shortly afterwards, and before the failure of James t}* Caswell, the defendants remitted to them, at different times, cash to the amount of 3000 dollars, to be especially applied to the payment of the advances; but James if Caswell never paid the money to the plaintiff; nor was the plaintiff ever informed, until after the failure of James éf Caswell, on the 8th of October, 1832, that such remittances had been made, by the defendants. There was no evidence that any communication had passed between the plaintiff or his assignees and the defendants, until the 9th of October, 1832, when the plaintiff’s assignees gave notice to the defendants of the assignment; and that payment for said advances must be made only to them. Nor did it appear, that any other communication had passed between the plaintiff or his assignees and James if Caswell, from the time the advances were furnished until their failure ; or that James cj* Caswell had ever credited them to the plaintiff or his assignees, or rendered any account thereof to the defendants, as debtors to James if Cas-irell, until February, 1833. Nor was there any evidence that James cf* Caswell ever informed the defendants, that said bills were presented against them, (James i¡' Caswell) as debtors to the plaintiff; or that they held themselves responsible for them as principals, until long after their failure.
    The plaintiff exhibited the evidence of two respectable dealers in letters of credit and bills of exchange in the city of New- York, familiar with, and largely interested in the mercantile intercourse and business with the United States and Great-Britain, shewing, “ That said letter of credit is drawn in the usual form, and that the established usage would justify the person giving it, or to whom it is addressed, and who gives credit on the faith thereof, in looking to the responsibility of the person who takes such letter of credit, and obtains the goods on credit under the same, as the person liable for any advances or purchases made on the faith of such letter.”
    The plaintiff thereupon insisted and claimed to the jury, that the defendants became original debtors to the plaintiff, by reason of the credit and advancements in England so furnished for their use ; and that they were still indebted to the plaintiff for them. This was denied, by the defendants, who - contended, that the note and letter of credit, however they might be construed, did not preclude the jury from finding, that James &f Caswell were the original debtors of the plaintiff, and bought of them the letter of credit, and were to be the only debtors of the plaintiff for the goods and money ; and that the jury ought to enquire and find, on weighing all the evidence before them, to whom the credit was given.
    To this the plaintiff assented ; but also insisted, that for all the advances made to Holmes for the use of the defendants, under the letter of credit so given, by the plaintiff, on the written request of James &p Caswell, the defendants were, -prima facie, liable, as the principal debtors, unless it satisfactorily appeared from other evidence, that the credit was in fact given, as claimed by the defendants, to James Caswell. So the court instructed the jury.
    The defendants also insisted, that as the goods and money furnished to Holmes in England, were afterwards charged, on the books of the plaintiff in New- York, to James Caswell, and payment requested, as before stated, it furnished conclusive evidence, that the credit was not given by the plaintiff to the defendants, as original debtors, and James Caswell, as sureties, as claimed by the plaintiff, but to James &p Caswell alone, as original debtors. If otherwise, the defendants further claimed, that the court should instruct the jury, that upon the facts proved and admitted, the plaintiff had constituted James óp Caswell his agents to receive the money due for said advances ; and that the remittances made by the defendants, to James 6p Caswell, on that account, discharged the defendants from all liability to the plaintiff. The court did not so instruct the jury; but left it to them to decide upon the evidence, in case they should find, that the defendants were the original debtors to the plaintiff for said advances, whether the plaintiff had so conducted as to constitute James <Sp Caswell his agents to receive payment from the defendants, and thereby absolve them from liability to the plaintiff.
    The jury found a verdict for the plaintiff; and the defendants moved for a new trial for a mis-direction.
    
      Sherman and Bronson, in support of the motion,
    contended, 1. That the application of James & Caswell to the plaintiff, and his letter to Thomas, his agent in England, did not furnish prima facie evidence bearing on the question of the original liability of the defendants. As a branch of this point, they insisted, that the letter was not a letter of credit, but a mere order, given by a merchant to his cleric, to afford facilities for obtaining goods. The defendants were not to receive, and did not receive, any goods of the plaintiff. The first delivery was to James & Casioell.
    
    2. That the court ought to have instructed the jury, that the charge on the plaintiff’s books to James & Caswell, with the other facts relating thereto, made them principal debtors.
    In the first place, this was in exact conformity with their note: “ It may be shipped to us. We want your letters,” &c.
    Secondly, James & Caswell were empowered, by the facts admitted, to receive the money from the defendants. The plaintiff had sent them for payment his account for the goods, which were all sent and charged to them ; and they told him they would pay as soon as they received the amount from the defendants. The plaintiff made no reply. This was in law an acquiescence in their receiving and paying; and so the court should have told the jury.
    Thirdly, the remittance, on the facts admitted, by law discharged the defendants ; and so the court should have charged the jury. Paterson &, al. v. Gandassequi, 15 East 62. Addison v. Gandassequi, 4 Taim. 574.
    Fourthly, the court submitted the law to the jury. The question submitted to them, was, “ whether the plaintiff had so conducted as to constitute James <fc Caswell his agents to receive payment from the defendants, and thereby absolve them from liability to the plaintiff.” The facts were principally admitted ; and there was little or no question about them.
    
      R. iS. Baldwin and Kimberly, contra,
    contended, 1. That the remittances made by the defendants to James &. Caswell, and their receipt thereof, in the manner and under the circumstances stated in the motion, did not by law discharge the defendants from their original liability to the plaintiff.
    In the first place, the plaintiff never constituted James <fc Caswell his agents to receive the money from the defendants ; and this the jury have found.
    Secondly, the facts proved and admitted, as stated in the motion, do not shew an intention on the part of the plaintiff to constitute James & Caswell his agents for that purpose.
    Thirdly, James & Caswell did not understand, that they were the plaintiff's agents ; for they never credited the plaintiff the money received, nor exhibited any bill to the defendants as debtors to James & Caswell, until after their failure, the next-year. Nor have they ever recognized any liability on their part, as original debtors.
    Fourthly, the letter of the 27th of August, 1832, from James & Casivell to the defendants, shows, that they were not acting as the plaintiff’s agents.
    Fifthly, the defendants had no reason to suppose that James &. Caswell were agents of the plaintiff; for they never were informed, that the bills had been so presented to James & Cas-well.
    
    Sixthly, the money was not, therefore, paid, by the defendants, to James & Caswell, in consequence of the charge, but pursuant to an original understanding between them.
    Seventhly, the facts proved and admitted shew, that James & Caswell acted, from the beginning, as the agents of the defendants.
    Eighthly, the whole was a matter of fact, upon which the jury have passed.
    2. That the defendants were prima facie liable, as principal debtors, for all advances, made by the plaintiff to Holmes, under the letter of credit, which was given upon the written request of James & Caswell, as stated in the motion. Such, in the first place, is the fair construction of the writings. And secondly, as the goods were furnished, by the plaintiff, for the use of the defendants, either the defendants or James & Cas-well were original debtors for them. But James & Caswell could not be so liable. 6 Rand. 509.
   The opinion of the Court was delivered by

Huntington, J.

Several exceptions are taken to the proceedings in the court below, on the trial of this cause, which are now to be examined. The defendants claim, that the judge at the circuit, omitted to charge the jury, on points made by them, and which were material ; and that the instructions which were given on other points, were erroneous.

1. The jury were informed, that for all the advances made to Holmes, for the use of the defendants, under the letter of credit given by the plaintiff, on the written request of James- & Caswell, the defendants were prima facie liable as the principal debtors, unless it satisfactorily appeared, from the other evidence in the case, that the credit was in fact given, as claimed by the defendants, to James & Caswell. It is insisted, that this direction was erroneous ; that it proceeded upon a misconception of the legal nature of the written communication from the plaintiff, to Thomas, at Birmingham ; that this paper was treated as a letter of credit, and that the charge was founded upon this hypothesis; — that it was not a letter of credit, nor in the nature of one, inasmuch as the plaintiff’s house in New- York, and in Birmingham, though called by different names, consisted of the plaintiff alone ; — that the letter addressed to Thomas, was but an order, drawn by the plaintiff on his own agent, who had no credit to give, and who was bound to execute it.

We should feel constrained to say, (if the decision of the case rested upon it,) that the defendants are not at liberty to insist upon this objection, in this Court, even were it well founded. It has been repeatedly decided, by us, that upon a motion for a new trial, we will not allow points of law to be discussed, which were not made, or which were waived, in the court below. We adhere to these decisions. The rule which they establish, is a salutary one, essential to the preservation of the rights of parties, and to the due administration of justice. We refer to the rule adopted by this Court, in 1826, (6 Conn. Rep. 327.) and to the cases of Lyon v. Summers, 7 Conn. Rep. 399. Russell & al. v. Stocking & al. 8 Conn. Rep. 236. It appears to us, that the argument now addressed to us, is designed to obtain a second trial of a question of fact, rather than the revision of matter of law claimed and relied on by the defendants, at the trial. Throughout the whole motion, the letter of the plaintiff to his agent in England, is treated, by both parties, as a letter of credit. The plaintiff and defendants alike consider and insist upon it as such. Their respective claims were founded on this supposition. The defendants did not call the attention of the judge to this instrument, in any other view than as a letter of credit; nor was he desired to distinguish it from an ordinary letter of credit, because the plaintiff’s house in England and in New- York, was composed of one and the same individual. On the contrary, they and the plaintiff united in giving to it the character, qualities and name of a letter of credit; and in accordance with this view of its legal nature, it is to be presumed, that the plaintiff offered thetestimony(which was received without objection,) of two respectable dealers in letters of credit and exchange in New- York, familiar with and largely interested in the mercantile intercourse and business transactions between the United States and Great-Britain, that said letter of credit is dralwn in the usual form, and that the established usage would justify the person giving it, or to whom it is addressed, and who gives credit on the faith thereof, in looking to the responsibility of the person who takes such letter of credit, and obtains the goods or credit under the same, asthe person liable for any advances or purchases made on the faith of such letter. From an inspection of the record in this case, we cannot doubt, that both parties concurred in the opinion, that this was a letter of credit, in the ordinary acceptation of that term, and that both consented and insisted, that the judge, at the trial, should so treat it. We think that we should not administer justice according to law, if we were to permit the defendants to except to a charge, which was made in conformity with the claims of both parties, as to the legal nature of the instrument, which now, for the first time, the defendants are anxious to controvert. It seems to us, that the view now sought to be taken of the letter of the plaintiff to his agent in England, has occurred to the defendants, since the finding of the jury against them on the matters of fact in controversy ; and that it would be a reproach to the law, to permit them, under the circumstances disclosed in the motion, to present it for our consideration. If by mistake, they took an incorrect view of it, at the trial, their remedy to correct that mistake must be presented in another form.

If, however, the objection now taken, was open to examination and revision, we should arrive at the same result, as to the correctness of the charge to the jury, founded upon it. We think, that whether it be considered as a proper letter of credit, or a mere order to afford the facilities which it directs the agent of the plaintiff to furnish, the opinion of the judge is sustained, by well settled principles and adjudicated cases. It was received, by one of the defendants, as a letter of credit; — it was used as such, by him, for the benefit of himself and his co-defendants; and all the advantages which it was contemplated would result from it, to the defendants, in fact followed from it. It had the precise effect designed by the parties, when it was written, delivered and received. It was taken, by Holmes, to the person to whom it was addressed, and by means of it, goods and money were furnished to him, to the amount which he desired. Whether, therefore, it be called by one name or another, — a letter of credit, or an order, — it was written to effect a single object; and it fully answered the purpose designed. The name by which it should be called, cannot alter its legal character, or give to it a different construction from what it would otherwise deserve. The motion states, that it was admitted, advances were made to one of the defendants, (Holmes) for the joint benefit of himself and partner, upon the credit of this letter or order : and it is a familiar principle, that in the absence of all evidence to the contrary, it is a legal presumption that the individual who purchases goods or borrows money of another, is the debtor for them, and becomes prima facie responsible for them. It is unnecessary to cite authorities in support of a doctrine so well established, and so consonant with justice and equity. In the case before us, the goods were purchased and the moneys advanced, at the request and for the benefit of the defendants. The note addressed by James & Caswell to the plaintiff, requests letters for Holmes, that he may procure his machinery. The letter of the plaintiff to Thomas, introduces Holmes to the latter, as one of the firm of Holmes & Hotchkiss, who is about to visit Birmingham, and transact business relative to his manufacturing concerns in the United States — that he intends to examine and procure machinery, and requesting Thomas to facilitate his business, and to accept his drafts to the extent specified. By means of this letter, the advances were made to Holmes; and we cannot doubt, that for such advances, upon this letter, he and his partner were, prima facie, liable. This is precisely the instruction of the court to the jury, on this point; and it was left to them, as a matter of fact, to find, whether, from the other evidence in the case, the credit was in fact given to James &. Caswell, and not to the defendants. If they should so find, the presumption of the primary liability of the defendants, would be rebutted, and they would be entitled to a verdict. In no other way, consistently with principles of law or equity, could the respective claims of the parties, arising out of the facts, have been presented to the jury.

It is, however, claimed, that the prima facie liability of the defendants, as principal debtors, is rebutted, by the direction, in the note of James 6p Caswell to the plaintiff, and in the letter of the plaintiff to his agent, at Birmingham, to forward the invoice of the goods and the bill of lading, to James Cas-well. We do not think this claim is well founded. Neither of these instruments furnishes the slightest evidence, that James Sp Caswell had any interest in these goods. The shipment to them, was not inconsistent with the liability of the defendants as principal debtors. It might, with propriety, have been made to them, as they were the sureties of the defendants for the advances made ; and an additional reason for adopting this course, is inferable from the facts, that James dp Caswell were the agents of the defendants — they resided in New- York, the port at which the goods would arrive ; and the defendants living in the interior of Connecticut, would, from motives of convenience, desire that the goods should be consigned to some person residing at the port of delivery. Hence the peculiar fitness of the language used by James dp Castcell, in their letter to the defendants of August 27, 1832. The balance of your goods will probably be here in a day or two, and will claim our attention by way of entry and forwarding.”

The case of Paterson v. Gandassequi, 15 East 62. and that of Addison v. Gandassequi, 4 Taunt. 574. have been cited, by the defendants, as favouring the claim now under consideration. We have examined them, and are unable to discover, that they furnish any support to the defendants’ case : And we refer to them, not so much for the purpose of pointing out the obvious distinctions between both of them, and the» present case, as that it may appear we have not overlooked them» in our deliberations on this subject. In the case first cited, the court recognize a familiar principle, which does not relate to the point in question — which is, that when the credit is in fact given to an agent, with the knowledge that he is in truth but an agent, and acts for a known principal, resort cannot be had to the principal. The rule for a new trial, was made absolute, that the alleged facts, of knowledge by the plaintiffs that the defendant was the principal, and that the plaintiffs had elected to take the agent as their debtor, might, with more certainty,. be ascertained. In the present case, the point in controversy was, whether credit was given to the defendants, or to James - 6)' Caswell; — and that was left, as a matter of fact, to the jury. In the case last cited, it was proved, that the goods were bought, by the house of Larrasabel Co., on their own credit and account; and it was submitted to the jury, to say, whether they acted as brokers, or not; — and the jury being of opinion that the goods were sold to them as principals, found a verdict for the defendant, which the court refused to disturb. In that case, the question of fact, in what character Larrasa-bel Sf Co. acted, whether as brokers merely, or as principals, was left to the jury, under all the circumstances, to determine. In the case before us, the question, whether the credit was in fact given to James cCasioell, was, in like manner, submitted to the jury, upon the whole evidence and in each case, we think the question was properly left for their decision. So far as the cases to which our attention has been called, are applicable to the present case, we think they sustain the charge given to the jury, at the trial.

2. The defendants asked the court to instruct the jury, that ■as the goods and money furnished to Holmes in England, were afterwards charged on the books of the plaintiff in New-ITork, to James Caswell, and payment requested, in the manner stated in the motion, it furnished conclusive evidence that the credit was not given by the plaintiff to the defendants, as original debtors, and James Caswell as sureties, but to James Sg Caswell alone, as original debtors therefor. This instruction, the court refused to give ; and we think this refusal is justified, by well established principles. Indeed, the counsel for the defendants have not attempted, in this court, to support the claim for such an instruction. It was properly abandoned ; — for it is too clear to admit of argument, that those facts were open to explanation. They might all exist, and yet the circumstances connected with them, be such, as to rebut any inference of the existence of the principal fact designed to be drawn from them. Is is, however, urged, that they made James Caswell, grima facie, the principal debtors to the plaintiff, (if they expressed no dissent) without reference to the question, who were primarily liable ; and that the jury should have been so instructed. It is a sufficient answer to this claim, ¡to say, that no such instruction was asked. “ It surely can be ' n° Sroun<^ ^01 a new that the court below omitted to give to the jury, upon a point of law which might arise in the cause, where neither party requested it.” We do not sit here, to suppott and sustain objections not made at the trial. “ It is sufficient for us, that the court below gave no erroneous directions. Should any point fairly presented by the evidence, be deemed material, by either party, it is competent for him to' demand the opinion of the court upon it. If he does not, it is waived.” The claim now made, supposes it to be the duty of the court, to suggest points of law for the benefit of the parties, though never thought of by them, nor controverted. We do not think any such duty is imposed upon us, by the constitution and laws under which we act. The court cannot be required to do more, in ordinary cases, than to express an opinion upon points which the parties themselves make at the trial*” Pennock & al. v. Dialogue, 2 Pet. U. S. Rep. 15, 16. Alsop v. Swathel & al. 7 Conn. Rep. 500. It does not appear from the motion, that the plaintiff denied, that the facts stated as the ground of this exception, furnished prima facie evidence, that the credit was given to James Sp Caswell, as original debtors. We do not know, that there was any controversy between the parties, as to this matter. It may be, and such is the fair presumption, that the jury understood both parties to admit, that upon these facts, they were at liberty to find James Sp Caswell to have been the original debtors, unless they were satisfied, from other evidence in the case, that no such indebtedness existed. On what principle, can we be asked to send this cause to another jury, when there was no error in refusing to give the instruction asked ; — and when we are not informed, that the claim, as now made, was resisted, by the successful party ?

3, The court below, was further asked to instruct the jury, that upon the facts proved and admitted, as stated in the motion, the law was so. that the plaintiff had thereby constituted James Sp Caswell, his agents, to receive the money due for said advances; and that the remittances made by the defendants to James Sp Caswell, on that account, discharged the defendants from all liability to the plaintiff. This instruction the court omitted to give, but left it to the jury to decide upon the evidence, in case they should find, that the defendants were the original debtors to the plaintiff for said advances, whether the plaintiff had so conducted, as to constitute James Sf Castcell his agents to receive payment from the defendant, and thereby absolve them from liability to the plaintiff.

We do not perceive any error, in refusing to give the instruction which was asked, nor in the instruction which was given. The question to be decided was, whether an agency to receive the money, was created, by the conduct and acts of the parties. This was a mere matter of fact, depending upon all the evidence in the case-and as such, was properly left to the jury_ who alone were authorized to find it. The only principle of law applicable to this part of the case, was this ; that if such agency was created and did exist, the payment to James <)• Caswell, for the advances made to the defendants, would discharge the defendants from all liability to the plaintiff: — and there does not appear to have been any controversy between the parties, as to the correctness of this principle, or of its application, if the facts found by the jury, should justify such application. The facts proved and admitted, did not furnish conclusive evidence, that James <$• Caswell were constituted the agents of the plaintiff, to receive payment for the advances. It was proper that they should be considered, by the jury ; and they were accordingly submitted to them, with the other evidence in the case, with the direction to find a verdict for the defendants, if, in view of the whole testimony, they should be satisfied, that such agency was created, and existed at the time when payment was made, by the defendants, to James Cas-well.

We are sensible, that the result to which we have arrived) will, probably, occasion a considerable loss to the defendants : and we have been told, that, in its operation, it will bear severely upon them. Whether the loss would be more severely felt by the defendants, than by the creditors of the plaintiff, we do not know, and cannot enquire. Courts of justice have no sympathies to indulge towards either party. The insolvency of James Caswell may, (in the language of Mansfield, Ch. J. in Addison v. Gandassequi, 4 Taunt. 581.) “make an unfortunate difference in the case, as to the consequences to the defendants, but it will not alter the liability.” The legal rights of the plaintiff cannot be varied, by the inability of James 4* Caswell to repay the amount received by them of the defendants. We must administer the law as we find it. In this case, it is with the plaintiff; and we give him the benefit of it.

Our opinion is, that the proceedings in the court below, were perfectly correct; and therefore, the motion for a new trial must be denied.

The other Judges concurred in this opinion.

New trial not to be granted.  