The opinion of the court was delivered at the 'Succeeding term in Cumberland, by
Mellen C. J.Upon the/acts before us the preseut action cannot be maintained, unless Jonathan Horsum, as the son of the defendant, can be legally considered as the agent of the plaintiff, in undertaking to procure the note declared ori, to be signed by him and the defendant, and returned to the plaintiff and exchanged for the note given by the son alone at the time he received the money. It is true that the plaintiff principally relied on the expected liability of the defendant, and the joint note which the son engaged to procure; but still the note signed by the son only, was to be considered as the plaintiff’s security until the joint note should be substituted in its place, and that was never done. The plaintiff has unquestionably been disappointed in his expectations, and deprived of the security intended for him, by an act on the part of the defendant which morality can never sanction; but still we do not perceive how the deceased son can be considered as the plaintiff’s agent in the above transaction; he was employed in accomplishing an object for his own benefit, that is in procuring a note to be signed by his father and himself payable in eight months, to be substituted for his own note payable in ten days; and he was killed before the object was accomplished. By the terms of the agreement, the joint note was not be considered as the plaintiff’s property, until delivered to him in exchange for the note signed by the son only. We are therefore of opinion *31that the action cannot be maintained upon the count on the joint note. Nor can the general count be considered as in any manner proved by the evidence in the case; because it does not appear, nor is it pretended that any part of the money loaned by the plaintiff ever came to the hands or use of the defendant. Accordingly the default must be stricken off, and a nonsuit entered, pursuant to the agreement of the parlies.