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. 261; 2 Ibid. 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 risk of the debtor ; and the creditor who l'emits 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 axe 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 risk the bill of exchange is remitted. To disturb this usage, would, obviously, operate very injuriously to the American merchant, in favor of foreign merchants ; but if the usage were not established, or if it were an unreasonable one, oxxr decision would not depend upon considerations of that nature : we should say, fiat Justitia, ruat caelum,!
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 cx-editor refused to accept payment here, on account of the rate of exchange : the immediate loss and expense of the remittance fell, therefore, on the debtor, as well as the contingent risk 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 & Zantzinger, though *ls81 indorsed by them *to Carr & 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 Swan wick. 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 & Zantzinger; and Carr & 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 been suggested ; particularly, because Keppele & Zantzinger defrayed the whole expense, and ran the whole risk of the remittance. Suppose, px'oduee had been shipped to Can & Sons, to be sold on accouixt of the shippers, but the proceeds were to be applied to the payment of their debt, could it be pretended, that the consignees would be entitled to any piofit 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 & Sons are neither to know profit or 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 specixlate 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 & 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 & Zantzinger made a declaration, which, at the first view, looked as if they relinquished every pretension to the bill of exchange : " We shah consider the bill as at your risk, 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 abandon - ment 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 & 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 & Sons responsible, if Swanwick failed in payment.
On the action by Carr & Sons, against Keppele & Zantzinger, it is unnecessary to detain the jury with any explanatory ^remarks. The account was settled ; and, by the conduct of the plaintiffs, it has been completely paid, in law and justice. [*159
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.