
    * Thaddeus Mayhew and Another versus William H. Prince.
    Where an agent drew a bill of exchange on a commercial house, in which his principal was a partner, and in the bill ordered the contents, when paid, to be placed to the debit of his principal, he was holden personally liable to the payees, although they were previously informed that he drew the bill in virtue of his agency.
    This was an action of assumpsit, upon eight several bills of exchange, drawn by the defendant at New Orleans, at the several times they bear date, on Higginson, Hodge Co., a mercantile house in New York, of which Stephen Higginson, Jun., of Boston, was the principal. The bills were payable to the plaintiffs, or their order, and by the tenor of them were to be placed to the debit of the said S. H., Jun.
    At the trial, which was had on the general issue, November term, 1812, before Parker, J., it was in evidence that the bills were seasonably presented to the house in New York, and were protested for non-acceptance, and due notice thereof given to the defendant.
    The defence set up was, that the defendant was a mere agent of the said H. S., Jun., for whose use and on whose account the bills were drawn ; and that the plaintiffs knew that the defendant acted in that capacity in drawing the bills. It was alleged that this appeared by the tenor of the bills themselves, and by the letter of instructions from N. H., Jun., to the defendant, authorizing him to draw the bills, which letter was admitted to have been shown to the plaintiffs by the defendant before the bills were drawn. It was also proved that the agent of the plaintiffs in Boston, to whom the bills were sent on for collection, called on Mr. Higginson for payment, who paid about one half of the amount; and that Prince, the drawer, was a young man of little property, beginning business under the patronage of Mr. Higginson, having had committed to him the purchase of the cargoes of two vessels at New Orleans, for which the bills in question were drawn.
    If these facts would constitute a good defence for the drawer of the bills, the verdict taken for the plaintiffs was to be set aside, and the plaintiffs to become nonsuit; otherwise judgment was to be rendered upon the verdict, with additional interest.
    [ * 55 ] * The cause was argued at the last March term, by
    
      Sullivan for the plaintiffs, and Savage for the defendant.
    
      Savage. The letter of advice communicated to the plaintiffs was evidence to them that Mr. H. was the real drawer of the bills; and the very face of the bills shows the same thing. It is of the essence of a bill of exchange, that one request another to pay on his account. In this case, the bills were to be paid on account of a third person, who was no party to them. If he was a party, he was liable as acceptor; and he subsequently assented, by his conduct, to be so considered. Ill every case of a legitimate bill, the drawer is presumed to have funds in the drawee’s hands, out of which the draft is to be paid. Here the defendant said expresslj that Mr. H. alone had the funds. 
    
    
      
      
        Chitty on Bills, 30, 31. — 2 East’s Rep. 142. — Wilks & Al. vs. Back, 2 Esp. Rep. 567.— Owen vs. Gooch.—1 D. & E. 172, M’Beath vs. Haldimand,.—2 Str. 955, Thomas & Al. vs. Bishop.
      
    
   At this term judgment was pronounced by

Parker, J.

We are unable to find any legal answer to the demand of the plaintiffs in this case, in the defence set up. The defendant drew the bills in question, putting his own name to them without any qualification. He must therefore be considered as the responsible drawer. The agency under which he acted is a matter between him and his employer; but cannot protect him from the claim of the payees of the bills, who have a right to consider him as an independent drawer, notwithstanding they may have known, either from the terms of the bills themselves, or from extraneous evidence, that the defendant was acting as servant to one of the house on which the bills were drawn.

It seems to be a general principle, that the signer of any contract, if he intends to prevent a resort to himself personally, should express in the contract the quality in which he acts; otherwise he does not bind the party who employs him, and necessarily binds himself. It is true, in the case before us, that the circumstances disclosed show an authority given by Mr. H. to the defendant to draw these bills; and probably Mr. H. is answerable on an implied promise to accept the bills drawn pursuant to such authority.

* Had the defendant, instead of signing the bills with [ * 56 ] his own name merely, signed them for and in behalf of Mr. H., there seems to be little doubt, from the facts found in the case, that Mr. H. might have been answerable as drawer. But it is competent for the plaintiffs to say that they do not consider him as the drawer, that he does not so appear on the bills, either directly or indirectly, and that the defendant chose, by the manner in which he executed his agency, to make himself accountable as a party to the bill. Judgment must be entered according to the verdict. 
      
      
        Chitty on Bills, 27, 28, and the authorities there cited. See, also, the case of Stackpole vs. Arnold, ante, p. 27.
     
      
      
         Alfredson vs. Ladd, 12 Mass. Rep. 173. — Copeland vs. Mercantile Ins. Co. 6 Pick. 198. —Fowler vs. Shearer, 7 Mass. Rep. 14. — Elwell vs. Shaw, 16 Mass Rep. 42, —• Couch vs. Ingersoll, 2 Pick. 292. — Hastings vs. Lovering, 2 Pick. 214.— Bayley on Bills, 5th ed. c. 2, § 7, p. 69. —Leadbitter vs. Farrow.
      
     