MARSHALL, Circuit Justice.
Before I proceed to the point on which this cause appears to me to depend, it may be proper lo notice some incidental questions which have been suggested in its progress, or in the argument on the case agreed.
It was contended by the defendant, at the trial before the jury, that the plaintiffs, by mingling the property of the defendant, with that of others, in a joint note, so as to deprive him of that perfect control over it, which his interest might require, or at least to embarrass the exercise of that control, had so misconducted themselves in then' agency, as to become liable for the debt. I was inclined to this opinion, but placed it upon the usage at New York. The case states that usage, so as to justify- the conduct of the agency, and this is no longer a question in the cause; but I think it proper to declare, that I satisfied myself, as soon as I looked into the subject, that my first impression was an erroneous one, and that the usage of New York, conforms to the general rule. 1 Liverm. Ag. 85. He quotes Mal. Lex Merc. 81, 82; Moll, de J. Mar. bk. 3, c. 8, § 4; [Ingraham v. Gibbs] 2 Dall. [2 U. S.] 136, note page 134; [Schenkhouse [327]*327v. Gibbs] 4 Dall. [4 U. S.] 136; Beawes, in his Lex Mercatoria (6th Dublin Ed. p. 36) in his chapter on the Law of Factors, &c., says: “One and the same factor may, and, generally, does act for several merchants, who must run the joint risk of his actions, though they are mere strangers to one another; as if five merchants shall remit to one factor, five distinct bales of goods, and the factor make a joint sale of them to one man, who is to pay one moiety down, and the other at six months’ end; if the buyer breaks before the second payment, each man must hear a proportional share of the loss, and be contented to accept of their dividend of the money advanced.” That the bills were sold upon credit, has not been urged against the agents as misconduct, because they gave notice thereof to their principal, who acquiesced in the sale. Independent of this fact, the sale upon credit was necessary and usual at the time, and was within the power to sell. But the defendant insists on the fact, that his agents received notes in payment for the bills, which notes had been given some time before, and were not endorsed by the purchasers of the bills. These circumstances are said to be such as cast suspicion on the notes, and ought to have restrained the agent from taking them. What influence •these circumstances, connected with others, might have on a jury, it is not for me to say. They are presented to the court, in the case agreed by the parties, connected with no other circumstance than this: that the makers of the note were, at the time, considered as good. If A. and B. give their note to O. on account of any transaction with him. and before it becomes payable, C. wishes to negotiate it, I have never understood that, in a commercial city, this is an unusual circumstance which ought to discredit the note. If I am correct in this, 1 can perceive no distinction between taking the note having three months to run, and taking the note of G. the purchaser, with D. as his surety on the same credit. The whole depends on the relative credit of the parties. If A. and B. are as trustworthy at the time, as C. and D., I can perceive no solid reason for distinguishing between their notes. The same reasoning excuses the agent for not insisting on the endorsement of the purchaser. A man may be unwilling to put his name on any paper, and this might render doubtful notes still more doubtful; but ought not, I think, to discredit the notes of men whose mercantile standing was solid at the time. The circumstances, that the bills were sold for a note of previous date, on which the purchaser did not place his name, are not, I think, per se, sufficient to weigh down the fact, that the maker and endorser were, at the time, in good credit.
Some stress has been laid on the fact, that the name of the purchaser has not been communicated to the defendant But the purchaser was not responsible, and the agent could have no motive for communicating it. Had it been demanded, suspicion might have been justified by withholding it; but no importance ought, I think, to be attached to the simple omission to communicate it, when no inquiries were made on the subject.
A point of more difficulty has been veiy much pressed in the argument. It is the omission of the agent to give notice of the non-payment of the notes. It is laid down generally by Paley and Chitty, that it is the duty of an agent in whose hands a bill is placed for collection, to give immediate notice of its dishonour. Both Paley and Chitty adopt the rule from Beawes’ Lex Mercatoria, in his chapter on Bills of Exchange, &e., fig. 117 (6th Dublin Ed. 373). The passage in Beawes is in the following words: “It is incumbent on him to whom a bill is remitted in commission; 1, to endeavour to procure acceptance: -2, on refusal, to protest, (if not forbidden,) though not expressly Ordered: -'3, to advise the remitter of the receipt, acceptance, or protesting it, and, in case of the latter, to send the protest to him: 4, to advise any third person, that is or may be concerned in it, and all this by the post’s return, without further delay.” The counsel for the defendant insists, that a neglect of the duty thus prescribed, renders the agent liable for the amount of the bill, if the debt should be lost. The plaintiffs contend, that such neglect subjects him only to compensation for the injury actually sustained from that cause. It is plain, from the language of the sentence, that the author could not mean to . say, that the failure of the agent in any part of the duty thus prescribed, would subject him, under all circumstances, to the payment of the whole bill, if it should be dishonoured by nonpayment on the part of the drawee. It is declared to be equally the duty of the agent to advise the remitter, of the receipt, acceptance, or protest. These are placed in the text on the same footing. But it will not be pretended that the omission to give notice of the receipt of the bill, or of its acceptance, would render the agent liable for its amount, on the failure of the acceptor to pay.
The defendant’s counsel, however, do not put the ease so strongly as to insist, that the agent, by neglecting any particular part of his duty, becomes responsible for the whole debt, should the acceptor fail. They contend that he is in the same situation as the holder of a bill, or as if he had been a party to the note, and incurs the same responsibility, for any neglect of duty, as such person would have incurred. The plaintiffs controvert this proposition. The general rule, appears to me to be, that a person acting on commission, who by his misconduct has brought loss upon his principal, is responsible to the precise extent of the loss produced by that misconduct. The rule is very well expressed by Mr. Livermore, in his valuable treatise on Agency (volume 1, p. 308). He says: “The [328]*328loss which the principal has sustained by reason of the negligence of his agent, I should take to be the true measure of damages, in an action founded upon that negligence. This appears to follow from the very definition of damages, being a recompense given by the jury, for the injury or wrong done to the party.” And Beawes, in his chapter on Factors, &e., says: “A factor is but a servant to the merchant, and receives from him, in lieu of wages, a commission,” &c. “He ought to keep strictly to the tenor of his orders, as a deviation from them, even in the most minute particular, esposes him to make ample satisfaction for any loss that may accrue from his non-observance of them.” Again he says: “A factor should always be punctual in the advises of his transactions in sales, purchases, affreightments, and, more especially, in draughts by exchange; for if he sells goods on trust, without giving advice thereof, and the buyer breaks, he is liable to trouble for his neglect; and if he draws without advising his having done so, he may justly expect to have his bill returned protested.” The rule which governs human transactions generally, is, that compensation shall be apportioned to the injury; and that rule is, X think, applicable to principal and agent. Russel v. Palmer, 2 Wils. 325; Smedes’. Ex’rs v. Elmendorf, 3 Johns. 185. To this general rule, there are some exceptions. The law merchant has made one, which stands on reasons peculiar to itself. This exception relates to commercial paper. For the benefit of trade, and to avoid endless contention respecting liabilities, oh paper of that description, a set of positive rules, prescribing with precision, the exact course to be pursued by the holder, and measuring the damage in every case of deviation, has been substituted by merchants, instead of the general rule of law, .that the person chargeable with negligence, shall be responsible for the damages actually produced by his misconduct. This exception, applies to all those whose names are on the paper, and to a person who has induced an endorser to take a bill by a written promise to accept, but has not, I think, been carried farther. I do not think it has been extended to an agent to whom commercial paper is transmitted for collection, but who does not make himself a party to that paper, by putting his name upon it. I find no case which establishes this principle.
Beawes, in his chapter on Bills of Exchange, &c., fig. 18, says: “When any person has bills sent him to procure an acceptance, with directions to return them or hold them at the order of the seconds, &c., and the person to whom they are sent, either forgets or neglects to demand acceptance, or if he suffers the party on whom they are drawn to delay their acceptance, and the drawer, in the interim, fail, he is certainly very blame-worthy, for his carelessness and disregard of complying with his obligation; though this will not subject him to payment of their value.” Mr. Beawes adds: “But if he should be urged and pressed to procure acceptance and payment of a bill sent him, and should protract or defer the getting it done, and the acceptant, being ignorant of the drawer’s circumstances, declares he would have accepted it, had it been timely presented; the person guilty of the neglect will be obliged to make good the loss that has happened to his correspondent, purely through his omission and carelessness.” Both these cases show, very clearly, the distinction supposed by Mr. Beawes to exist, between an agent to whom a bill is remitted for collection, and an endorser. If the liability of an agent to his principal was the same with that of a holder to his endorser, there can be no doubt that the loss would be his in the first case put; and that it would be equally his, in the last case put, although the drawee should not declare “that he would have accepted it, had it been timely presented.” The same author, in the same chapter, fig. 97, says: — “If a remitter in commission stands del credere for the remisses, he acts indiscreetly, if he has the bills made payable to himself or order, that he may endorse them.” Among other reasons for this opinion, one is: 2, that, “the remitter by this means, makes himself liable, not only to answer all damages, &c., to his principal, but. also to every possessor and endorser of the bill after-him.” “3. By endorsing the bill, he makes it his own, and obliges himself on the account of his principal, not only for the value by him received, but for all other charges and re-exchanges.” “And though a remitter by commission does not stand del credere, he acts with equal imprudence in having the bills made payable to himself or order, and then endorses them, for thereby, he effectually engages himself to stand del credere, without reaping any advantage therefrom.” These passages show, that Mr. Beawes takes a clear distinction, between the relation in which an agent for collection stands to his principal, and that in which the holder of a bill stands to rthe drawer or endorser. The same negligence or omission which will der prive the holder of all recourse against the drawer or endorser, will not subject the agent to his principal to the extent of the bill placed in his hands for collection. His name is not on the bill, and the law merchant does not apply to him. Warrington v. Furbor, 8 East, 242. The case of Bridges v. Berry, 3 Taunt. 130, was a bill drawn by the defendant himself. The decision, that the neglect of the holder to give notice to the drawer of its dis-honour, deprived the holder of his recourse against the drawer for a pre-existing debt, as a security for which this bill was given, belongs to a different and a much more difficult question, which I am about to examine.
The main question in the cause, and I will not affect to consider it a clear one, is this. Have the plaintiffs, by their conduct respecting these notes, made them absolute payment [329]*329towards tlie discharge of the debt • due to them from the defendant? Have they made the notes their own? The parties stood towards each other in the double relation of principal and agent, and of debtor and creditor. This double relation does not sink either character, nor lessen the obligations imposed by either. That these notes were not applied in part payment of a pre-existing,. ascertained, and fixed debt, but to the credit of the defendant in a running account, in which he was uniformly the debtor, is not, I think, a material circumstance. The transaction was not a sale of the bills of exchange, or of the notes, by the defendant to the plaintiffs; but an application of those bills, and of the notes for which they were sold, to his credit with them, in the ordinary way in which such paper is credited; that is, provisionally, to become absolute in their payment, or on such •other event as may authorize the debtor to consider them as paid. It is admitted to be incumbent on the person receiving negotiable paper under these circumstances, to use •due diligence to obtain its acceptance and payment; and that neglect in these respects, converts the provisional into an absolute payment. But due diligence, it is alleged, has been used in this case; and the charge against the agents and creditors is, that they did not give notice that the notes were dis-honoured. Mr. Chitty (page 126) says: “The effect of taking a bill of exchange or promissory note, in satisfaction of a precedent debt, is, that the creditor cannot proceed in an action for such debt without showing that he has used due diligence to obtain acceptance or payment; and also showing, if the defendant was a party thereto, or delivered it to the plaintiff, that the defendant had due notice of the dishonour.”
Elementary writers sometimes state- general rules as if they were universal; and do not always make those discriminations which a comparison of the cases themselves shows ought to be made; nor trace results to the true principle which produces them. Chitty is, undoubtedly, a very respectable writer; but when he carries a rule farther than the cases have carried it, the proposition he states, rests upon his own authority entirely; and when the dictum stands alone, unaccompanied by the principle on which it is founded, there is the more reason for searching out the principle, and inquiring whether that will comprehend the case which the dictum will comprehend. If it will not, we may conclude that the writer has expressed himself carelessly, and may withhold our assent from his proposition, in the broad terms in which he states it. In this case, Mr. Chitty makes it indispensable, that the defendant should have due notice of the dishonour of a note given, provisionally, in payment of a debt. In general, the person who delivers such note, has his recourse against some other person, and that recourse may be lost, if immediate measures be not taken to enforce the claim. In any case, there is an actual loss, or the law supposes a loss of the debt, and throws the hazard on him whose negligence has produced it. Mr. Chitty lays down the rule as if it did not depend on the fact, that there were other persons whose responsibility might be affected by the want of notice. The authorities on which he relies for this broad proposition, are, an act of parliament passed in the fourth year of the reign of Queen Anne, and Bridges v. Berry, 3 Taunt. 130. The act of parliament is not supposed to affect this case. It may, however, be proper to advert to it It enacts that “if any person accept any bill, for and in satisfaction of, any former debt, &c., the same shall be esteemed a complete payment of such debt, if the person do not take his due course to obtain payment thereof,” &e. Mr. Chitty may have founded himself on his construction of this statute: so far as he has done so, his authority is inapplicable to this case.
Bridges v. Berry was an action brought against the acceptor of a bill of exchange, who, when the bill fell due, obtained time and gave the holder a bill • drawn and endorsed by himself on one Ivory, payable two months after date. This bill was dishonour-ed, and the plaintiff omitted to give notice of its non-payment to the drawer. At the trial, it was admitted, that the plaintiff could not recover upon it, but he insisted that it constituted no bar to a recovery of the original debt. The court determined that it was a bar; and if no reason had been given for the opinion, I should admit that the case supported the principle for which it is cited. But the court does give a reason; it is that the defendant himself had a right to sue other persons, and that the plaintiff, by not giving him due notice of its dishonour, had put it out of his power to recover what was due thereupon. This is not an argument mixed up with other arguments, conducing to the judgment of the court, but is the very principle of that judgment. It is the distinction taken in that case, and one cited in argument. It is the very foundation of the judgment, a fact, without which, the judgment would not have been rendered. I will take the liberty to say, that this decision, if not inconsiderately made, has been very carelessly reported. The defendant was the drawer and endorser of the bill, which was dishonoured. His recourse upon it, therefore, could have been only against the acceptor. His right to recover against the acceptor, depended on having funds in his hands, and the ability to recover, could be lost only by the insolvency of the acceptor. Neither of these essential-facts is stated in the report, but the opinion of the court is founded on them, and in ap-' plying the case, we must suppose their existence. Here, then, is an actual loss sustained by the debtor, to the amount of the bill, and his exoneration from the original debt, is made to depend on that loss. The case, [330]*330therefore, does not support the broad principle which Mr. Chitty has extracted from it I cannot forbear noticing the distinction taken between the right to recover on the bill which had been dishonoured, and on the original debt. It was admitted that no suit could be sustained on the dishonoured bill. Why ? Because the law merchant applied to it, and the doctrine of notice discharged the drawer and endorser. If this necessarily applied to the debt, on account of which the bill was given, then there could be as little question in a suit for that debt, as on the bill. The law merchant would settle one case as positively as the other; but while the claim on the bill was abandoned as desperate, that for the original debt was defeated, only by the consideration of actual loss sustained. in consequence of the negligence of the creditor who was the holder of the bill. This distinction is still more strongly marked in Bishop v. Rowe and Bishop v. Bayly, 3 Maule & S. 362. The suit against Rowe, was on a bill of exchange, drawn and endorsed by himself, and accepted by J. Bayly. It was also endorsed by the plaintiff, and was discounted at bank for Tucker. The bill was dishonoured, and due notice given. The money was in part paid, and, for the residue, amounting to £100, Tucker drew a bill on Lewis, payable to the plaintiff, which the plaintiff endorsed, and carried to the bank. This bill was also dishonoured, but no notice given to Tucker. It was insisted that, because the remedy on the substituted bill was lost, no action could be maintained on the original debt. A verdict was taken for the plaintiff, and a rule to show cause why a new trial should not be granted, was discharged. Lord Ellenborough laid some stress on the circumstance, that the name of Tucker, though the person for whom the original bill was discounted, and who was, consequently, the debtor in fact, was not on it. Tucker was, therefore, a person intervening, and his bill was accepted, not for, and in satisfaction of a former debt, under the statute of Anne, but for the chance of its being productive. The plaintiff might have returned it presently, or within a reasonable time; and when the bill is dishonoured, unless it had been received in satisfaction of a former debt, he was not bound to go farther. Lord Ellenborough expressed great doubt, but was finally of opinion, that the original creditor was not bound to prove that notice was given to the drawer of the substituted bill, especially where the name of that drawer was not on the bill which constituted the original debt, for which the suit was brought. Le Blanc, J., was of opinion that no action could have been maintained on the substituted bill, for want of notice; but that the substituted bill was no payment of the original bill, unless something had been done to discharge the party to that bill. If he could have shown that by the laches of the plaintiff in the course of this negotiation, he had lost £100, or that he had been prevented from suing on the £100 bill, he might have made out a defence. Bay ley, Jr., was of opinion, that if the defendant had proved that Tucker drew on funds in the hands of the drawee, the defence might have been sustained, but not having shown this fact, he had not made out his defence. This was, undoubtedly, a case in which the inclination of the court might be excusably in favour of the plaintiff, for justice was plainly and strongly with him. The principle, in this case, as in Bridges v. Berry, is, that if a bill be received as provisional payment, the omission to give due notice of its dishonour, deprives the creditor of his action on that bill, but does not compel him to take it as absolute payment, or deprive him of his action on the original debt, farther than damage has been sustained, actually, or in legal supposition, by the debtor. In both cases, the possible damage, was the loss of the funds which the drawer might have in the hands of the drawee. The court of common pleas seems to have assumed the existence of such funds; the court of king’s bench required proof of the fact. They both show how entirely the question, Whether a provisional, becomes an absolute payment, depends on circumstances, and how carefully all those circumstances are to be considered. Both these cases turn singly on the omission to give notice, unaccompanied with any positive act, on the part of the creditor; circumstances may undoubtedly raise a legal presumption against the person who is creditor, or agent, or both, which may charge him with the loss, if he is merely an agent, or convert a provisional, into an absolute payment, if he is a creditor. Some strong cases of this description have been cited, which, though decisions at nisi prius, are' not to be absolutely disregarded.
In Edgar v. Bumstead, 1 Camp. 411. the plaintiff, an insurance broker, had paid money assured for an insolvent underwriter, not knowing his insolvency at the time. Lord Ellenborough was of opinion that it could not be recovered back. This opinion was placed on the known course of dealing between the insurance broker, the merchant, and the underwriter. The agent, if not acting del cred-ere, would certainly not have been liable for the insolvency of the underwriter, yet, the act of voluntary payment, though made by mistake, fixed the debt due from the underwriter on him, and made it his own.
In Jameson v. Swainstone, 2 Camp. 540,2 the plaintiffs, who were insurance brokers, had effected a policy for the defendant on a vessel, which was afterwards stranded, and the plaintiffs advanced considerable sums of money to refit her for the voyage. An average loss was adjusted in May, 180G, upon which the plaintiffs transmitted an account to the defendant, debiting him with their advances, and giving him credit for the. average loss [331]*331due from the underwriters. The balance due on this account was immediately paid. In the month of August following, which was the usual time of settling between the brokers and the underwriters, the plaintiffs called upon the underwriters, some of whom refused to pay. on the ground of insolvency. Different applications were afterwards made, but without success. In August, 1808, the plaintiffs transmitted another account to the defendant, claiming the sum due from the insolvent underwriters; on their refusal to pay, a suit was instituted, and at the trial, Mansfield, C. J., said, he was of opinion, that after so great a lapse of time between rendering the two accounts, the brokers, as between themselves and their principal, must be presumed either to have received actual payment from the underwriters, or to have settled with them some other way. For the purpose of recovering from the defendant, they should have apprized him in August, 1800, of the state of the underwriters, who, he was naturally led to suppose, had settled with the brokers; and their silence had deprived him, for the space of two years, of all opportunities of enforcing the policies of insurance. The verdict was for the defendant. This is a case of simple agency. The delay will be admitted to have been such as to justify the opinion of the assured, that the money had been received by the brokers. But the language of the judge shows clearly, that immediate notice of the failure of the underwriters ought to have been given, and we are left to conjecture, for what length of time the laches of the agent might have been excused.
These cases, as well as those of Andrew v. Robinson, 3 Camp. 199, and Ovington v. Bell, Id. 237, show on what nice circumstances these questions turn.
In the ease under consideration, a bill of exchange was remitted to the plaintiffs by the defendant, who was a debtor to the. plaintiffs, in a letter of the 25th of November, 1825, directing them to sell it, and to place the proceeds to his credit, with them. This bill was sold on the 7th of December, partly for cash and partly for negotiable notes, payable in March, 1826, which were endorsed to the plaintiffs, and placed by them in bank for collection. Notice of the sale was given to the defendant the succeeding day, and an account transmitted to him on the 13th of January, 1826, in which he was credited for the proceeds of the bill. The money and the notes constituted two distinct items of credit. Thus far, the con duct of the agents was unexceptionable. The bill was transmitted to them to be converted into available funds, and if they sold it upon credit, the notes might have been payable to the defendant, in which case, they must havn been transmitted to him to be endorsed, and returned for collection, or might be made immediately payable to themselves. The latter course was more convenient to the parties, but it subjected the agents, however correct in itself, to any disadvantage connected with it. In March, 1826, the notes were regularly protested for non-payment. According tó commercial usage, the plaintiffs ought to have given the defendant immediate notice of their dishonour, and thus have put it in his power to direct such measures, as his view of circumstances might suggest. Bay-ley, Bills, 174. No doubt he would have been guided by the advice of the plaintiffs; but he had a right to the exercise of his judgment, and the plaintiffs ought to have enabled him to exercise it.3 The correspondence between the parties was regular and frequent, yet no hint was given of the non-payment of these notes, until the 13th of June, 1826. From the silence of the plaintiffs respecting these notes, through the whole of this correspondence, the defendant had certainly a right to presume that they were paid, and had undoubtedly a claim upon the plaintiffs, commensurate with their actual damages. The rule by which these damages would be ascertained, is not now the question. The defendant insists, that the payment has become absolute, without entering upon this inquiry. If the case stopped at this point, I believe my opinion would be against him. But it does not stop at this point.
It is unnecessary to discuss the intricate questions which would arise in this stage .of [332]*332the cause, the notes being negotiable paper; •because, my opinion turns chiefly on the acts •of commission on the part of the plaintiffs, taken in connexion with this act of omission, and with another which will be hereafter noticed. On the 21st of April, 1826, James Hamilton visited the defendant in Peters-burg, and received from him a very considerable payment on account of the debt to them, without mentioning the non-payment ■of the notes. This fact is a strong circumstance to show, that the plaintiffs relied on the notes. It is said not to be shown, that Hamilton was the partner who transacted the ■business, or that he was acquainted with the fact. This might be an important inquiry in a criminal prosecution; but in a civil action, brought by the firm of Hamilton, Donaldson Co., all the partners, as residents ■of New York, must, I think, be presumed, unless the contrary be shown, to be residents, to be active partners, and to be acquainted with the whole transaction. The silence of Mr. Hamilton is the silence of the Arm.
A still more important fact remains to be considered. On the 5th of May, 1826, the plaintiffs wrote a letter to the defendant, ■concerning their increased responsibility for him, in which they recognise the account transmitted in January, and re-state the balance between them, upon the principle that the notes were paid. This is, I think, equivalent to an account in which unconditional credit should be given for the notes. They were then dishonoured. The plaintiffs gave :no notice of their dishonour, but credit the •defendant for them. Had the relation between the parties been merely that of principal and agent, and the plaintiffs, instead of •crediting the defendant for the notes, had paid their amount, the case would have been much stronger than that of Edgar v. Bum-stead, because the money would have been paid, not through mistake, but with full knowledge of the insolvency of the parties to the notes. Between the payment of the money by a mere agent, and the transmission -of what is equivalent to an acknowledgment •of the payment of the notes, by a person who is at the same time agent and debtor, the •distinction, I think, cannot easily be drawn.
I have said that there is still another act of ■omission which has considerable influence on this case. That is, the failure to enforce the judgment which has been obtained, or to show, otherwise, the insolvency of those who .are liable for them. I readily admit, that in .general, it is sufficient for him who has received negotiable paper as a provisional payment, to present it for acceptance, and to •demand payment, and in the event of the bill’s being dishonoured, he may return it, and recur to his original claim. Had these notes stood in the name of the defendant, ■this course would have been sufficient. But they are in the name of the plaintiffs, and 'have been put in suit in their name. If the notes had been sent to the defendant with the name of the plaintiffs on them, they would, according to the cases, have been responsible. Le Feuvre v. Lloyd, reported in 1 Marsh. 318, and 5 Taunt. 749, is expressly in point. They have, by putting the notes in suit, placed their names upon them, and have disabled themselves from striking them off. They have taken upon themselves to collect the money by suit, and ought to show their inability to do so, before they can come against the defendant. The defendant has been prevented from exercising any power over these notes by compromise, or otherwise, by the acts and omissions of the plaintiffs. The plaintiffs have undertaken to collect the money by suit. Under these circumstances, I think, they cannot recover the amount of the notes in this action. Judgment must be entered for the lesser sum found by the jury.