It appears from the finding of the auditors, that there is no peculiar law of New-York on the subject in controversy; but the question depends on the general principles of commercial law. This enables the Court to dispose of, at once, the opinion expressed by a respectable judge of that state. An opinion given at Nisi Prius would not be ob*442ligatory on the judge pronouncing it, when sitting in the supreme court of the state of New-York ; and it certainly cannot be admitted to possess higher authority in this Court,
There exists no doubt, that competent skill, as well as fidelity, in the discharge of his trust, may be legally demanded of an agent; and that for a deficiency in either, he is responsible. Paley on Agency 4-7.
The plaintiff, to avail himself of this principle, has advanced the following propositions. 1. That the defendant was his agent; and having received doubloons at 17 dollars each, and applied them to the freight and charges on his account rendered, at the rate of 15 dollars; he, of course, was deficient in competent skill, or fidelity. 2. That the freight and charges were payable in the legal currency of the country where they were paid : and that there was a want of integrity or skill in making an application of the doubloons at their supposed actual, and not at their current value. Lastly, that the commission charged by Davis, on a bill drawn for the avails of the flour sold at Rio Janeiro, amounted to a guaranty, and subjected him to account for the doubloons at 17 dollars each.
1. The case is very peculiar. The defendant was the agent of the plaintiff to sell the wheat and flour, and to receive payment of the purchaser: and so far as this was effected, he was the agent of the Messrs. Griswold over the same subject. No sooner did the money reach his hands, than the whole of it became their property. It was held at their risk, and for their use; to be appropriated in conformity with their order, which, undoubtedly, had before been given, in the United States. So far as the action of the agent was concerned, there is no ground of objection ; nor has any been made. He had sold the cargo, without any imputation of want of skill or fidelity ; he had received the money ; and by this act, in connexion with the contract between the plaintiff and the Griswolds, the money was in the hands of his principals. Consequently, he had ceased to be the agent of the plaintiff, but was bound to render his account. In doing this, he was performing a legal obligation in reporting on a past concern; but he cannot, withstrict propriety, be said to be fulfilling an agency. I think it was not within his authority, by the mode of rendering his account to the plaintiff, and to the Griswolds, for whom he was acting, to deprive the former of any legal right. The freight and charges were alone to be deducted; and if the defendant has expressed an opinion *443on the face of his account, that the plaintiff ought to pay more than the freight, he was not empowered to do this; nor can it be obligatory on the freighter. Suppose the defendant had received payment in dollars, and putting the whole into the hands of the Griswolds, had stated an account, estimating each dollar, as applicable to the freight, to be the value of three-fourths of a dollar only; would this proceeding be obligatory on the plaintiff? No more will the estimate of doubloons at four-fifths of their value.
I consider the plaintiff, on the matter in question, as not bound by the account rendered; and that a different supposition contravenes the liberal equity both of the common and commercial law.
2. The opinion expressed disposes of the second position, that the freight was payable in the legal currency of the country where it was to be paid. Under the peculiar circumstances of this case, the proposition is, at best, doubtful; but admitting it, the principle only tends to show, that there was a mistaken supposition entertained by the defendant, which works no injury, as it, in no respect, varies the measure of accountability, on the part of the Griswolds.
3. With respect to the last proposition advanced, that the commission charged by Davis on the bill drawn for the avails of the flour, amounts to a guaranty, and subjects him to account for the doubloons at their current value, it is sufficient to say, that no such question is put to the court, by the remonstrance. The account rendered by the defendant, it is true, is referred to, and made parcel of the record. It is, however, available only in support of the allegations made in the remonstrance, and not to authorize criticism or controversy on subjects concerning which no specific complaint has been made. If, however, the question is considered, so far as the facts will warrant, it presents no difficulty. The indorsement of the bill on which a percentage was charged, has been assimilated to the case of a person acting under a del credere commission. A commission del credere is one, under which an agent, in consideration of an additional premium, engages to insure his principal, not only of the debtor’s solvency, but of the punctual discharge of the debt. Paley on Agency, 39. Beawes 429. Grove & al. v. Dubois, 1 Term Rep. 112. Now, admit, for the sake of argument, that the defendant, by his guaranty of the bill, became an agent del credere; the stipulation was performed, by collecting and *444paying the money to the Griswolds, and no obligation was broken. But all that can be said on this subject, is mere]y beating the air, It is not known from the record what was the nature of the guaranty; but it is known, that there was a contract by indorsement with the bill-holder, and not with the plaintiff.He was a stranger to that transaction, not a party; and it is futile to say, that he was insured, by a proceeding, with which he had no imaginable connexion.
The other Judges were of the same opinion, except Daggett, J. who gave no opinion, having been of counsel in the cause.
Judgment affirmed.