
    * Edward Forbes and Another versus Kelley Eldridge.
    A merchant in the United States consigns his ship to his correspondent in Ireland, directs him to make insurance, and draws a bill of exchange on him payable in London. The bill being accepted, before it falls due the acceptor purchases and remits exchange to reimburse the house in London for their payment of the bill; the bills thus remitted do not fall due in season for the acceptance, and before then- maturity the parties to them become bankrupt. It was holden that the American merchant was not liable for the loss thus incurred.
    Assumpsit to recover the balance of an account. The counts in the declaration were indebitatus assumpsit on the accounts annexed, and the common money counts. The controversy between the parties arose from a charge in that account, of the 2d of May, 1801, of 650Z. sterling, as a remittance to pay a bill of exchange of like amount, drawn by Hicks if Post, of New York, the defendant’s agents, upon the plaintiffs, merchants in Dublin.
    
    On the trial upon the general issue, which was had before the Chief Justice at the last November term in this county, it appeared in evidence, that the defendant was part-owner and ship’s husband of the ship William Jane ; that on the 25th December, 1800, the said ship being then bound on a voyage from Neio York to Dublin, he wrote to the plaintiffs, informing them that he had sent the ship to their address, requesting them to make insurance on her freight to the amount of 1200/. sterling, and likewise informed them he had authorized Hicks Sf Post to draw on them for 900/. sterling, payable at sixty days’ sight. On the 11th of February, 1801, Hicks 6f Post drew on the plaintiffs a set of exchange in favor of Richard J. Lawrence, for 650/. sterling, payable in London at sixty days’ sight, and on the same day advised the plaintiffs thereof. This bill came to hand and was accepted by the plaintiffs on the 30th of March, 1801, payable at the house of H. Sf J. Johnson <$f Co. in London, ánd became due June 1, 1801.
    On the 2d of May, 1801, the plaintiffs purchased on the exchange of Dublin two bills of exchange, drawn by John Cullimore, of Ross, on Thomas O’Neil, in London, dated 30th of April, 1801, one of them for 300/., the other for 350/. sterling, endorsed by W. <§• J. Phelps, the parties to the bills, being then in good credit, for the purpose of placing *them iii the hands of H. & J. Johnson &f Co., in London, as a fund to reimburse them for said acceptance, and remitted the same on the 6th of May, 1801, to Johnson Co. These bills were payable at forty-five days after date, and becarite due the 18th of June, 1801.
    No commission or del credere was charged by the plaintiffs for the insurance or guaranty of the said bills. On the 11th of May, 1801, they were accepted by O’Neil, and he, as well as the drawer and endorsers, became bankrupt before they were payable. The bills were protested, of which the defendant was advised by the plaintiffs. Sundry sums have been" received by the plaintiffs, as dividends from the effects of the several parties to these bills, and the balance now claimed is the sum eventually lost.
    No evidence was offered to prove that Hicks Post had special authority to draw their bill payable in London; nor to show that there was a previous agreement between the parties that the defendant should be liable for any loss which might happen upon the remittance to pay the acceptance in London; nor was there any evidence offered relative to the general usage of merchants in cases of this kind, except one deposition, which the jury declared did not satisfy them of the existence of such usage.
    
      The Chief Justice instructed the jury upon this evidence, that in point of law the plaintiffs had not maintained the issue on their part. The jury returned a verdict for the defendant; and the counsel for the plaintiffs moved for a new trial to be granted them for the supposed misdirection of the judge in matter of law. If the Court should be of opinion that the direction of the judge was erroneous, the verdict was to be set aside, and a new trial to be granted ; otherwise there was to be judgment on the verdict.
    The action stood over to this term for the consideration of that motion, which was now argued by Otis and Thatcher for the plain tiffs, and Dexter and Aylwin for the defendant.
    * For the plaintiffs,
    
    it was contended that they acted in the purchase of Cullimore’s bills merely as the agents of the defendant; and having acted bond fide and with proper discretion in the transaction, they have a just claim on him for an indemnity.
    As the plaintiffs were bound to accept the drought of Hides Sf Post, they were alike bound to provide funds for its payment. Had they remitted merchandise or coin to meet that bill at maturity, could it be said that they must do this at their own peril, either as it respected the sea risk or the state of the market ? So far from this, they would have had a right immediately to pass the money, or the price of the merchandise, to'the defendant’s debit.
    It would have been an unjustifiable injury to the defendant, had the plaintiffs refused acceptance of the bill drawn by his order, under the circumstances which existed : and having accepted them, it was equally their duty to provide funds for its payment. If, upon the facts in this case, they are not entitled by law to a reimbursement, it will behave merchants to practise upon much less liberal principles than they have been used to recognize in their mutual dealings.
    
      For the defendant,
    it was argued that he was not liable, because Hides Of Post exceeded their authority by drawing the bill payable in London. But the plaintiffs having seen fit to accept the bill, as connected with the consignment of the ship to them, the mode adopted by them for the fulfilment of their undertaking cannot create a charge on the defendant. To him it was immaterial whether they had funds then in London, or must provide them by a remittance of exchange or a shipment of merchandise ; it was their own affair, and it is going quite too far to say that the merchandise would have been at the defendant’s risk, or that he must warrant the solvency of the parties to the exchange remitted.
    If the plaintiffs are to be considered as the defendant’s agents, they did not act bond fide in purchasing bills which * did not become payable until seventeen days after the drought on them would fall due, — while at the same time this circumstance shows that Cullimore’s bills were not, in fact, purchased with a view to meet the acceptance of that drawn by Hicks Sf Post.
    
    There is, in short, nothing in the case that shows the plaintiffs to have considered themselves as the agents of the defendant, or that they purchased the exchange which failed on his account.
   By the Court.

To strip the reports of all adventitious circumstances, the case may be correctly stated thus: — A merchant in the United States consigns his ship to his correspondent in Ireland, directs him to procure insurance, and draws a bill of exchange on him payable in London; the bill is accepted by the correspondent in the usual course of his business; before it arrives at matu rity, he purchases and remits exchange to reimburse the house in London for their payment of the bill; the bills thus remitted do not fall due in season for the acceptance, and before their maturity the parties to them become bankrupt. And the question is, Upon whom Shall this loss fall ?

It has been argued for the plaintiffs that, as they were acting as the agents of the defendant, they are not to suffer the loss sustained by the bankruptcy.

But the question of agency is not applicable to this case. The acceptor does not act as the agent of the drawer of a bill of exchange. He accepts on his own terms, and to suit his own convenience. Indeed, we do not find a dictum in the books showing that the acceptor is to be considered as the agent of the drawer ;• or that the drawer is liable for a loss of meeting the acceptance, unless by force of a special agreement on his part to answer for such loss.

In the case before us, it is apparent that the plaintiffs did not consider themselves as agents. On the 2d of May, 1801, they make the following charge against the defendant, to our remittance to H. &f J. Johnson &f Co. to * pay our acceptance of Hicks &f Post’s bill on me by your order: ” this was a charge of an actual payment.

On the whole, it appears to us quite immaterial in what manner funds were placed in London to meet the acceptance. Whether it was effected at a profit or a loss to the plaintiffs, was no concern of the defendant, and he cannot be liable for the result.

Judgment on the verdict.  