
    * Edward S. Long and Another versus David Greene and Another.
    When A, a merchant at TV, at the request of the .agent of B, a merchant at X, had given his bond at the custom-house m W, for the duties on certain goods consigned to B, and had sent them coastwise to X, with a certificate proper to entitle them to a drawback of the duties, which certificate was withheld from B, until he should furnish A with an indemnity against his bond; and that not being done, the certificate was never delivered, whereby B lost the draw back: — B, was still held to pay to A the amount of the duties he had paid m discharge of his bond.
    
      Assumpsit for money paid, laid out and expended by the plaintiffs for the use of the defendants.
    The action was tried upon the general issue before Parker, J., at the last November term in this county.
    It appeared in evidence at the trial, that forty hogsheads of sugar had been consigned, by a merchant in Demerara, to the defendants, merchants in Boston; and that the master of the vessel, instead of bringing them directly to Boston, according to the bills of lading, carried them in his vessel to Portsmouth, where the owner of the vessel resided. The sugars were afterwards shipped to the defendants in Boston, who received and disposed of the same.
    The plaintiffs, together with, and at the request of one Sioett, since deceased, who undertook to act as agent for the defendants, and who was afterwards recognized as such, gave their bonds at the custom-house in Portsmouth for the duties on the sugars, which were afterwards transported coastwise to Boston, and received by the defendants. The coastwise certificate, necessary to obtain a drawback of the duties upon the sugars, was transmitted by the plaintiffs to their agent in Boston, with instructions not to deliver it to the defendants, unless they should furnish the plaintiffs with a sufficient indemnity against the payment of the duties.
    The sugars were sold by the defendants at auction, as entitled to debenture; but, though repeated applications were made by the defendants for the said coastwise certificate, to the plaintiffs’ agent who possessed it, the latter refused to deliver it unless the defendants would furnish the said indemnity, which they declined doing ; and the certificate was not delivered, although frequently offered to the defendants upon the condition before mentioned; and, in consequence, the benefit of the drawback was lost to [ * 269 ] the * defendants, who were obliged to refund the amount thereof to the purchasers of the sugars.
    The plaintiffs, having paid the duties some time after the bonds became due, brought this action to recover the amount so paid. The defence set up was, that the plaintiffs not having delivered tne said certificate, and the defendants having thereby lost the benefit of the drawback, the plaintiffs were not entitled to recover.
    The jury were instructed by the judge, who sat in the trial, that the plaintiffs were not obliged to deliver the certificate to the defendants, unless they were previously indemnified against the payment of the said duties. The jury gave their verdict for the amount of the duties so paid; the defendants moved for a new trial, on the ground of misdirection of the judge, having excepted before the verdiet to the direction so given by the judge to the jury ; and the action stood continued over upon the said motion.
    And now, at this term, Amory, for the defendants, argued that the plaintiffs having volunteered their services in giving bonds for the duties, and through their folly or obstinacy having prevented the defendants from deriving any benefit from their act, they had no right to maintain this action. The defendants neither requested them to give the bonds, nor engaged to indemnify them ; although, if they had done all their duty, and furnished the defendants with the means of obtaining the drawback, these latter would thus have been enabled and disposed to indemnify the plaintiffs. This being all one transaction, the agents ought to show that they have done all their duty, and given to their principals all the benefit they were entitled to.
    
      For the plaintiffs,
    
    it was said that these transactions were wholly independent of each other. If the plaintiffs were not justified in retaining the certificate, until they were indemnified, let the defendants bring their action for the wrong. But it can in no view be u proper offset to this action.
    * The plaintiffs had a lien on the sugars for an indem- [ * 270 ] mty: having delivered them to the defendants, they still had a lien on the drawback, and on the certificate necessary to the obtaining it:  the defendants had no claim on the plaintiffs to furnish them with the means of obtaining the drawback; and the plaintiffs might lawfully hold the certificate, until their reasonable request was complied with. It was the folly and obstinacy of the defendants in refusing such compliance, which has caused the misfortune, and they, not the plaintiffs, ought to bear the inconvenience.
    
      Amory, in reply.
    The certificate was not the property of the defendants, nor can they maintain an action against the plaintiffs for the detention of it; but in an action of this equitable kind, it is proper to receive every fact which may go to mitigate the damages. The plaintiffs had a right to retain the sugars until indemnified ; but it is not easy to see what lien they had upon the certificate, which gave them no security nor benefit, and was to them of no value. Here has been a loss of money; and the question is, Whose shall the loss be ? Certainly it ought to fall upon those, from whose misconduct the loss arose, and not upon the defendants, who have had no agency in procuring it.
    
      
      
        2 East. 227, Hammonds v. Barclay & Assignees, &c.
      
    
   The opinion of the Court (absente Parsons, C. J.) was delivered by

Sedgwick, J.

The bonds in this case having been given at the request of the defendants, or, what is equivalent to it, and the money having been paid in consequence of it, the plaintiffs are undoubtedly entitled to recover, unless the defendants are justified in withholding payment on the principles of their defence.

The Solicitor-General and Thurston for the plaintiffs.

The sugars were sold as entitled to debenture ; and had the certificate, received at the custom-house in Portsmouth, been delivered to the defendants, they might have obtained debentures, which would have enabled them to discharge the bonds that had been given to the plaintiffs. The defendants repeatedly applied for the certificate ; but the plaintiffs’ agent, who had it in pos- [ *271 ] session, refused to delivér *it, in conformity to the orders he had received from his principals, not to deliver it, unless security was given to indemnify them in paying the duties.

That it was reasonable that the plaintiffs should be indemnified, there can be no doubt; and the withholding the certificate, to compel the defendants to perform their duty by giving the security required, seems not to be unjust or oppressive. And if this is not a sufficient excuse, then this is the common case of one man having paid money for another, at his request.

Judgment on the verdict  