(Mr. Justice GRIER concurring.)
It is my opinion, that the judgment of the Circuit Court,, in this case, should be affirmed, upon the questions raised in the argument, 1st, upon the sufficiency of the finding by the jury, as being responsive-to all.the issues, or otherwise; — 2dly, as to the admissibility in evidence of the release to Arnold, in the absence of the subscribing witness to that release, there is an entire concurrence amongst the Judges. But with the views announced as those of the court with respect to the authority and the1 acts of Doctor Hicks, as the agent of Downey, and as to the consequences deducible from those acts, I am.constrained to disagree.
And here I must remark, that, according to my apprehension of the evidence upon the record, as to the authority vested in Doctor Hicks, as agent, and his acts under that authority, and with respect to the conduct of Downey, as principal, in confirmation of those acts,' — that evidence has not been accurately stated. It is said by the court, that Doctor Hicks did not act as the agent, but merely as. the friend of Downey'. There seems to be some difficulty, and even confusion, in this attempt to discriminate between these two characters'. True it is, that the agent, however confided in, does not always prove the best friend of his principal; but it is equally true, that the principal would rarely select, as his agent, one whom he regarded in any other light than that of a friend. But the record, according to my apprehension of the evidence, discloses the most ample and explicit authority to Doctor Hicks, to settle the claims of Downey upon the firm of Hicks & Arnold, and exhibits instructions equally clear to Doctor Hicks, to transmit to Downey the amount which this agent, upon the settlement made by him, should ascertain to be owing from Hicks & Arnold to Downey. The record discloses these further facts : 1. The settlement made by Doctor Hicks, with Hicks & Arnold; 2. The drawing of a check by these persons in favor of Doctor Hicks, the agent, upon the bank at Natchez, for the amount ascertained to be due to Downey; 3. The presentation of that check by the agent, at the bank at Natchez ; 4. The proffer by the bank, of payment in specie of the amqunt of the check; and the express agreement of the agent with the bank, to commute that check and proffer of immediate payment in money for a certificate of deposit, or post-note, payable at a deferred period, bearing an interest of 8.per centum. Bo much, then, for the acts of the agent in virtue of the authority originally vested in him; and if there could -arise á' doubt as to their validity, that doubt could apply only to .the transmutation of the demand for the money into a certificate of deposit, or deferred payment, bearing interest. But, supposing *252there had been- room for doubt in this respect, on the ground that the agent had transcended his power, that doubt must be entirely dispelled when the conduct of the principal is considered. Upon being informed, by the agent, of the measure he had taken,' and upon having the certificate transmitted to him, the principal said, in reply, that although he would have preferred a payment down in money, yet as the agent had acted for himself hé had done for his principal, he could not find fault with the arrangement. He expressed no apprehensions as to the prudence or safety of the arrangement, but ratified it expressly; and in fact the proof is clear, that at the time,--and. for some months' after, the'bank was paying specie ; and that its certificates, like the one in question, commanded a premium in the market.- In this mode was the entire proceedings of the agent explicitly ratified. . " '
If this apprehension of the testimony be correct, then it is difficult to conceive how the jury cohld have been misled by the instructions which were given them by the court. Indeed this court,, so far as those instructions covered the relation of principal and agent,.have not questioned the correctness of those instructions. But it is said, that the court erred in the opinion it expressed upon the subject of the diligence requisite in the application for payment of the certificate of deposit. Let it be conceded, that this opinion of the court upon the subject of reasonable diligence was not the law; still it should not; affect the decision in thi§ case, because that opinion liad no connection with the true character of the case, which depended upon a phase of the evidence to. which that instruction had no application, and- could not influence. If the agent of Downey was authorized to' settle, and had settled with the debtors of Downey, and the latter had accepted from |iis debtors what he acknowledged was payment, at this point, the transaction closed; and unless the-parties making-payment could be affected by showing fraud or bad faith, the whole matter was terminated by the agreement between the parties. Downey had an indisputable right to receive ípayment in any medium he might choose, and it is not in the power of a court to control his first choice and give him the right to a second, or to visit, upon those who'have applied .their means to his satisfaction, and by so doing prevented them being available to themselves to any other possible purpose, the mischiefs resulting from his choice;
But it is said by 'the court, that Hicks & Arnold, subsequently to the failure of the bank, admitted their liability to Downey for,this demand. Here, again, I conceive that the evidence in this cause has been greatly misapprehended, and that a correct understanding of the testimony will show that the *253admission which has been brought to bear upon this transaction, related to a posterior .and wholly different liability of the same parties — to a transaction in which Hicks and Arnold had deposited a certificate of deposit of this bank as collateral security for a debt from Arnold, and that security turning out not to be available, they held themselves bound to satisfy the demand it was designed to secure. This subsequent transaction had no connection whatever with that in which the check in question' was given, and on which payment in money was proffered,-but for which the certificate of deposit was, by express agreement of the agent, ratified by his principal, taken in full satisfaction.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias-de novo.