l t36 Casts ruled and adjudged an the kygr. Br me Cover :—The ohjeélion is, in our opinion, fatal to , the a&ion. The af.} of Srbenllvq/E, in re-delivering the hill to j tbedrawer,andde{iringaremit|anceforthegoorIs,mulioperate ' as a legal extinguilhmeut of the hill. It was feut hy the defend- ants as payment; Srbulhg/é refufed no reeeiveitin that light; and, ancordingly, returned it to the drawer. From that mo- mentthebillwas, in elleét, cancelled; and Srbrulbrgk could not afterwards negochte the feoond bill,fosstofnbje& the de- fendantstoa¤a&ionupouit. Theremedyof the real plain- tilf; mult, thereforgbefoundedtnltheoriginaleonnafl; and as we under{landthatana&io¤ inthatformis now depending, the principal point of the eonuoverfy may be decided in that, without any expeuce or On thiaopinion the plaintilffufered a non-fuit.*
- Sd•enlbarscn.Gi66e,etal. Theaéion refcrredtoin the Re•
yon, was afterwards tried in fantasy Term r7g4, before the Judgea of the SupremeCourt; and the only quellion agitatedvas, whether thedefendantswereliable fortheamouutofthehill remittedtothe plaintill} under the circnrnllanoes above {lated? Come and Ingersoll iulllled, that the defendants, ily mingling the interell of S¢·l·enlbau.reuith`the interell of others, fa as to deprive him of the polleliou and immediate remedy ou Bass: if Sger': bill, had rendered themfelves liable forthe Iofs, that had hqzpened, notwith~ {landing the general authority given to them, to make remittances in good bills of exchange. r AI . I72. a_·;4. Bull. 1lLR4a.g. Cmp.48o• 217. 8. nc. Mud. tog. Rmule and Dallas contended, that the defendants had aéled bona jd:. iithin the fpirit of their authority; and had done for Scbenb bause precifely as they did for themfelves. Nothing more ought_ to he exaded from a faétor than rcafonable vigilance and llriét tidelity. It is ufual that there lhould he one faétor, for feveral merchants; and if the veudee of all their goods fail, they mult bear the lofs. to 1|[od• rog. Mello) 493. 494. Coup. 47Q. 4g6. Fir. Abr.7. Prine o. Ralston cnt. p.6o. Burner would always be regarded as a trullee for the parties, aocordingtotheir proportions, and Scbsnhbsure might make him ac- count. The Court left the caufe to the jury, who found a Verdi:} for the defendants. _'}Cmuar;
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