1798. Swanwick had failed; and Carr demanded payment from Keppele and Zantzinger, on the footing of the original account for goods sold. On the other hand, Keppele and Zantzinger demanded from Carr, the twenty per cent. damages, included in Sivanwick's note, with interest from the date of the note. And, upon these adverse claims, the present actions were instituted, and tried at the same time. At the trial of the cause, three grounds were taken in favour of Carr and Sons: 1st. That the language of the letters, written by Keppele and Zantzinger, was not meant to retain an interest in the bill of exchange; but to preserve, unimpaired, the original contract, if the bill was not honoured; cr, at most, to protect them, as indorsers, from being liable for damages; but not to entitle them to receive any. Carr and Sons had a complete power over the bill; they might have cancelled it after acceptance, for the acceptor's note; or they might have released it upon any, or no consideration to the drawer's agent in England; the only effect of which would be, to render the bill payment of the preceding debt, as in Watts v. Willing, 2 Dall. Rep. 100. And Chapman v. Steinmetz, 1 Dall. Rep. 261. differs from this case; because the suit was there against the drawer of the bill, who was, also, the original debtor, expressly stipulating, that he should not be liable for damages; and here Carr and Sons do not sue Keppele and Zantzinger on the bill, for damages. 2d. That whatever might be the operation of the original contract, the claim of Keppele and Zuntzinger to damages was extinguished, when Zantzinger declared, that "the bill would be considered for the future, at the risque of Carr and Sons;" changing essentially the relative responsibility of the parties. 3d. That the suit brought by Keppele and Zantzinger, for the damages, was a disaffirmance of any implied contract, that the bill of exchange was paid, or received, in satisfaction of the precedent debt; and, consequently, Carr and Sons are entitled to recover upon the okl account, whatever may be their responsibility for the principal, as well as the damages, of the bill. In that respect, too, Keppele and Zantzinger have chosen to regard them as agents; and can only be entitied to recover, what Carr and Sons received, to wit, Swanwick's promissory note. In favour of Keppele and Zantzinger, it was urged, 1st. That the remittance of the bill of exchange was, by express stipulation, upon their account, and at their risque; and the terms of the remittance came, pointedly, within the principle of Watts v. Wil ling, and Chapman v. Steinmetz. Till the bill was paid in England; or, in case of a protest, till it was recovered from the drawer here, it was, exclusively, at the risque of Keppele and Zantzinger; and they, who were exposed to the whole risque were entitled, in law and equity, to the whole benefit of an indemnity. 2d. That 2d. That the declaration of Zantzinger, does not, either in the 1798. intention, or the expression, amount to a waiver of the claim for damages; nor can it, in any respect, impair, or alter, the conditional contract on which the remittance was made. 3d. That the conduct of Carr and Sons has made the bill of exchange an absolute fund for the payment of the precedent debt; and that debt was eventually extinguished and satisfied, by taking Swanwick's note: but their conduct creates no right to receive, more than the amount of the precedent debt; and, consequently, they are liable for the damages in one suit, though they cannot recover upon the account, in the other suit. (1) SHIPPEN, Justice. The sum in controversy is small; but the principle of the decision, is of great and general importance. What is the law, the justice, and the usage, upon the subject? It appears from two cases, that have been cited (1 Dall. Rep. 261. 2 Dall. Rep. 100.) to be the settled law, that where a bill of exchange is not paid and received, in satisfaction of a debt, due from a merchant to his correspondent, it goes at the risque of the debtor; and the creditor who remits it for acceptance and payment, stands on the footing of an agent only, until the bill is actually paid. Then, in point of justice, it seems but fair, to allow every incidental, or casual, profit and emolument, to the party who is exposed to all the hazard and inconvenience of the remittance. As to the usage, the jury are best able to ascertain it from personal experience; but so far as I have been able to collect information, there appears to be only one opinion among commercial men; to wit, that he is entitled to the damages, on whose account and risque the bill of exchange is remitted. To disturb this usage, would, obviously, operate very injuriously to the American merchant, in favour of foreign merchants; but, if the usage were not established, or if it were an unreasonable one, our decision would not depend upon considerations of that nature: we should say, fiat justitia, ruat cœlum! Let us, then, consider the facts of the present case, under this general view of the law, justice, and usage, of merchants. The debt was due and payable in London. The creditor refused to accept payment here, on account of the rate of exchange. The immediate loss and expense of the remittance tell, therefore, on the debtor, as well as the contingent risque of the bill. The creditor, also, refused to take the hazard of the remittance to himself; and, in effect, agreed to act as the agent of the debtor, in all that related to the bill of exchange. There is not, in short, the least doubt on this important fact, that the bill was remitted on account of Keppele and Zantzinger, though indorsed by them (1) The Judges differing in opinion, each addressed the jury; but the Chief Justice, on account of indisposition, added only a few words, in affirmance of the sentiments of SHIPPEN, Justice to 1798. to Carr and Sons. When the bill returned protested, the debtor demanded it, tendering the amount of principal and interest; but this overture to a payment was peremptorily rejected by Carr; and he assumed the sole management of settling the business with Swanwick. Whether it was settled by a cash payment, or by a promissory note, is not material; the bill being delivered up without the authority, or consent, of Keppele and Zantzinger; and Carr and Sons becoming, consequently, responsible to them, for the full value of their interest in the bill. That interest was the amount of the damages, on the principles, which have already been suggested; particularly, because Keppele and Zantzinger defrayed the whole expense, and run the whole risque, of the remittance. Suppose, produce had been shipped to Carr and Sons, to be sold on account of the shippers, but the proceeds were to be applied to the payn.ent of their debt, could it be pretended, that the consignees would be entitled to any profit on the sale; or that, in case of a loss, it must be borne by them? No: in that instance, and I think, with a parity of reason, in the instance before the Court, Carr and Sons are neither to know profit nor loss, in the transaction. It is surely enough for the British merchant, to enjoy the fair profit charged upon the goods, which he sells and transmits to his American customers; without being allowed to speculate upon the damages on bills of exchange, the usual medium for paying his account, in a way, that enables him to pocket all the gain, and to cast upon them all the loss. In justice to Carr and Sons, however, it is proper to take notice of another ground, on which their cause has been placed; the only ground, indeed, that has created any doubt, or difference, in the minds of the Judges. On the 5th of November 1796, when they refused to accept a tender of principal and interest, Keppele and Zantzinger made a declaration, which, at the first view, looked as if they relinquished every pretension to the bill of exchange: "We shall consider the bill as at your risque from this day." This expression, however, cannot, in law, be regarded as constituting a new contract, or agreement; for, certainly there was no mutuality of bargain; no coincidence of proposition and assent: But it may, in point of fact, be regarded as an extinguishment of the conditional terms of the remittance; as an abandonment of all claim upon the bill of exchange; a fact which the jury must decide. It appears to me, however, that if law, justice, and usage, had previously vested the right to damages in Keppele and Zantzinger, it is too light, too equivocal, an expression, to be construed into a waiver of that right; particularly, when it may with, at least, equal propriety be construed to mean, that they should consider Carr and Sons responsible, if Swanwick failed in payment. On the action by Carr and Sons, against Keppele and Zantzinger, it is unnecessary to detain the jury with any explanatory remarks. remarks. The account was settled; and, by the conduct of the 1798. plaintiffs, it has been completely paid, in law and justice. SMITH, Justice. I concur in the opinion of my venerable brother, as to the second action; and subscribe, indeed, to all the general principles, which he has stated, in reference to the first. But it is my misfortune to view in a different manner from him, the important transaction of the 5th of November 1796: for, whatever may have been the antecedent rights of Keppele and Zantzinger, the conversation of that day, does, in my opinion, essentially change the situation of the parties. The bill was thenceforth entirely at the risque of Carr and Sons; and if Swanwick had failed the very next day, before any arrangement for payment, or before any laches in the endeavour to obtain payment, Carr and Sons could never have recovered from Keppele and Zantzinger, either on the original account, or on the indorsement of the bill. The risque of Keppele and Zantzinger being thus at end, all their legal and equitable claim to the damages, on account of risque, must, also, be extinct. In an early stage of the transaction, too, I think there is some fallacy in treating Carr and Sons merely as the agents of their debtor, in relation to the bill of exchange. If they had lost, or destroyed, it; if, on the protest, the drawer's friend had paid it in London for his honour; or, if Carr and Sons, after an acceptance, had released the acceptor, with, or without, a consideration; surely, in none of these instances could a claim to twenty per cent. damages arise; and all that Keppele and Zantzinger could insist upon in law, justice, or usage, would be, that the bill, under such circumstances, should be deemed a payment of their debt, notwithstanding the conditional terms of the remittance. In these sentiments, I am uninfluenced by any consideration of attachment to the American merchant, or of enmity to the British merchant: and, I think, they will be found to conform best to the honour of all merchants, which, like the chastity of a female, should be free from suspicion, as well as free from taint. M'KEAN, Chief Justice. Upon the refusal of the tender in November 1796, Zantzinger declared, that the bill of exchange should be at the risque of Carr and Sons for the future. The meaning of this declaration, I understand to be (at least, it is a reasonable interpretation) that Carr and Sons themselves should be answerable to Keppele and Zantzinger, for the principal, interest, and damages, even if Swanwick should become insolvent. Under the view of the case, I concur with my brother SHIPPEN, in all his remarks which he has delivered to the jury. Verdict for Keppele and Zantzinger in both actions. Ingersoll and Brinton, for Keppele and Zantzinger. OF PENNSYLVANIA, March Term 1799. M'Clay versus Hanna et al. THIS HIS was an appeal from the Orphan's Court of Dauphin county, under the following circumstances: John Harris, by his will dated the 25th of May 1790, proved 2d of August 1791, bequeathed all his personal estate to his sons David, Robert, and James, and his daughters Mary M Clay and Mary Hanna, to be equally divided between them. He, also, ordered his executors to sell all his lands not otherwise disposed of by his will, and divide the proceeds as aforesaid. He directed his executors to settle their accounts, in the Orphan's Court, in one year after his decease, and continue to settle an account annually until the estate was finally settled. In January 1795, a citation was issued at the request of William M Clay, one of the executors of John Harris, against David Harris, Robert Harris, John Andrew Hanna, Joseph Work, and John M Clay, the other executors, to appear at the next Orphan's Court for Dauphin county, to make a full disclosure of all effects and estate of the deceased, which have come to their hands, possession, or knowledge, and settle and abide the order and judgment of the Court on the premises. The cause came to a hearing in the Orphan's Court, in September 1795; when a motion was made by M Clay's counsel that Robert Harris and John A. Hanna should answer, on oath, to a charge of having received money for the sale of sundry lots, which had been conveyed to them by the testator, by absolute deed, on a secret trust, to be accountable for the proceeds of the sales: and that they should bring the said proceeds into their administration account, and charge themselves therewith. The Court determined, 1st. That the said Harris and Hanna, should not be obliged to answer on their oath to the said charge: and, 2d. That the plaintiff should |