— 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 & Zantzinger, the conversation of that day, does, in my opinion, essentially change the situation of the parties. The bill was thenceforth entirely at the risk of Carr & Sons ; and if Swanwick had failed, the very next day, before any arrangement for payment, or before any laches in the endeavor to obtain payment, Carr & Sons could never have recovered from Keppele & Zantzinger, either on the original account, or on the indorsement of the bill. The risk of Keppele & Zantzinger being thus at end, all their legal and equitable claim to the damages, on account of risk, must also be extinct.
In an early stage of the transaction, too, I think, there is some fallacy in treating Carr & 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 honor ; or, if Carr & 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 & 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 honor of all merchants, which, like the chastity of a female, should be free from suspicion, as well as free from taint.
McKean, Chief Justice.— Upon the refusal of the tender, in November 1796, Zantzinger declared, that the bill of exchange should be at the risk of *138Carr & Sons for the future. The meaning of this declaration, I understand to be (at least, it is a reasonable interpretation), that Carr & Sons themselves should be answerable to Keppele & 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.
Ingersoll and Brinton, for Keppele & Zantzinger. Dallas, for Carr & Sons.Verdict for Keppele & Zantzinger in both actions.