Schimmelpennich v. Bayard. 1 P. never to the individual making the advance. This language shows, we think, incontestably, that the article was drawn with a sole view to bills drawn by Mr. Delprat as agent, not on his own account as a merchant. A subsequent part of the article gives additional support to this construction. Mr. Delprat is to draw for two thirds of the invoice price of the article, and is himself the judge of the price which may be inserted in the invoice. This power might be safely confided to him in making advances to others, but might not be trusted to him in his own case. The case shows the Van Staphorsts to have been men of extreme caution. Their letter to Le Roy, Bayard, and Co., inclosing their contract with Delprat, shows an unwillingness to commit themselves to him further than was necessary. It [* 289 ] is not probable that they would have given him an express authority to draw on his own account on invoices to be priced by himself. But the language of the article applies, we think, entirely to his bills drawn as agent, not to those drawn as a merchant transacting business for himself. When examined as a witness, Mr. Delprat says that, during the whole period of his agency, he was in the habit of making shipments on his own account, to the said house in Amsterdam, and of drawing for advances on account of the said shipments so made, precisely in the same manner as when the shipments were made by others; and this was done with the full knowledge of N. and J. and R. Van Staphorst, who never found fault with him for doing so; but, in order to encourage him to make such shipments, gave him credit for one half the commission upon the sales of the shipments, so made on his own account. The Van Staphorsts were commission merchants, desirous of extending their business. No doubt can be entertained of their willing ness to receive consignments from Mr. Delprat, as well as from others. But this does not prove that the power given him as their agent, to make advances to others, was intended to regulate the intercourse between them as merchants. That intercourse was regulated by the general principles of mercantile law; and the contract between the parties does not show that either was dissatisfied with those principles, or wished to vary them. This question refers, we presume, to the authority given by the contract of the 11th of January, 1818. The first article describes the objects which were committed to Mr. Delprat, by the Van Staphorsts. These were the management "of their mercantile interest in the United States, consisting chiefly in the forming new solid connections, and procuring of consigments." Schimmelpennich v. Bayard. 1 P. The second article restrains the right Mr. Delprat might otherwise have exercised, of consigning to other houses in the Netherlands. The third authorizes him to draw bills on his principals, for the purposes of his agency, under such limitations as they deemed it prudent to prescribe. This contract, we think, does not contemplate bills drawn by Mr. Delprat on his own account, as a merchant. The bills mentioned in the declaration, which were drawn in favor of the defendants, and indorsed by them, do not come within the authority given by the contract. No instructions from the plaintiffs, extending this authority, appear in the record. The third question comprehends the whole matter in controversy, and has been partly answered in answering the preceding questions. It asks whether the plaintiffs were bound to [290] accept and pay the bills in question; and whether the same having been paid by the plaintiffs, supra protest, for the honor of the defendants, the plaintiffs are entitled to recover the amount of the defendants? The opinion has been already expressed that the bill, drawn on the 23d of May, 1822, for £500 sterling, in favor of J. P. Krafft, is not distinguishable from those which were drawn by Mr. Delprat, to enable him to purchase articles on his own account, which were shipped to the plaintiffs. In making these shipments, and in drawing these bills, Mr. Delprat acted for himself, as an independent merchant. The relation between him and the plaintiffs was that of consignor and consignee. The obligation of the plaintiffs to accept and pay his bills, depended essentially on the state of their accounts. So far as the information furnished by the case goes, Delprat appears to have been indebted to the plaintiffs. In their letters of 19th July and 10th September, 1822, which were given in evidence by the defendants, they state him to be then their debtor; and it is not shown that this debt has been discharged. The plaintiffs, therefore, were not bound to accept and pay these drafts, unless they have acted in such a manner as to give the holders of the bills a right to count on their being paid. It is believed, to be a general rule, that an agent with limited powers cannot bind his principal when he transcends his power. It would seem to follow that a person transacting business with him on the credit of his principal, is bound to know the extent of his authority. Yet, if the principal has, by his declaration or conduct, authorized the opinion that he had given more extensive powers to his agent than were in fact given, he could not be permitted to avail himself of the imposition, and to protest bills, the drawing of which Schimmelpennich v. Bayard. 1 P. his conduct had sanctioned. But the defendants, in this cause, cannot allege that they have been deceived. They were the intimate correspondents of the plaintiffs, from whom they received a copy of the contract. The letter which transmitted it, requests their friendly supervision of the conduct of Mr. Delprat, and desires them not to pay the money for which the plaintiffs had given him a credit with them, in case of "a moral certainty" that it would not be employed for the purposes of his agency. In the course of the correspondence between the plaintiffs and defendants, we find several letters, written during the continuance of Mr. Delprat's credit with the latter, which shows the determination of the former not to approve of advances beyond that credit. In their letter of the 24th of June, 1819, the plaintiffs expressly caution the defendants, should they think proper to remit in Mr. Delprat's bills, the nature of which they are [* 291 ] well acquainted with, that they (the * defendants) allow him the same credit that they do other persons, from whom they take bills, in the persuasion of their solidity, and of the reality of the transaction on which the bills are issued. They add: "This is not the effect of any want of confidence in our agent, but merely profluing from our invariable rule to limit and circumscribe the credits we allow." The letters from the defendants show a perfect understanding, on their part, of the terms on which Mr. Delprat's bills were to be taken. On the 11th May, 1819, announcing that he had filled his credit, they say: "In addition to it, he has expressed an anxiety that we should negotiate his drafts on you, payable in London, for about £3,000 sterling, or that we should take his drafts on Amsterdam, for a similar value. The personal regard which we bear for Mr. Delprat, would have induced us promptly to accede to his request, had not the restriction laid upon us, of not permitting him to exceed, but for a few hundred dollars, the credit you give him, and the total absence of any indication from you of a wish for us to interfere in his pecuniary arrangements, in any other than the mode marked by the credit, led us to believe that our negotiations or purchase of his drafts, was neither wished nor contemplated by you." And, in their letter of the 7th of September, 1822, inclosing the order of Mr. Delprat on the plaintiffs, for any balances belonging to him in their hands, so far from complaining of the protest of the bills, they say: "We can, of course, only consider this order as applying to the balance that may possibly accrue to him, upon the settlement of your account." Messrs. Le Roy, Bayard, and Co., then, were not deceived by the plaintiffs. Unfortunately for themselves, they placed too much confidence in Mr. Delprat. They took his bills, as they were cautioned Schimmelpennich v. Bayard. 1 p. to do, in the letter of the 24th June, 1819," in the persuasion of their solidity, and of the reality of the transaction on which they were issued." If in this they were mistaken, the responsibility and the loss are their own. The 4th and 5th questions have been waived by the parties, and do not properly arise in the case. They are on exceptions taken in the trial of the cause, which could not be brought before the court after verdict, but on a motion for a new trial, which was not made. The 6th question, whether a judgment can be rendered on the verdict of the jury, has been answered, so far as this court can answer it. We do not understand it as referring to the amount of the verdict, for, on that the circuit court alone can decide. If it is intended to repeat, in another form, the question whether the plaintiffs can maintain their action, as * the holders of bills, ac- [ *292 ] cepted and paid, supra protest, for the honor of the drawers, it is already answered. The decision of a majority of this court, on the points on which the judges of the circuit court were divided, will be certified in conformity with the foregoing opinion. This cause came on to be heard, on a certificate of division of opinion of the judges of the circuit court of the United States, for the southern district of New York, and on the points on which the said judges were divided in opinion, and was argued by counsel, on consideration whereof, this court is of opinion 1. That the authority to John C. Delprat to draw on the plaintiffs, did not amount to an acceptance of the bills. 2. and 3. That the bills mentioned in the declaration, were drawn by the said Delprat, not under the authority of the plaintiffs, but on his own account; and the plaintiffs were not bound to accept and pay them, unless funds of the drawer came to their hands. 4. and 5. These questions are understood to be waived, and do not appear to arise in the case. 6. The 6th question is decided by the answer to the 2d and 3d, so far as respects the right of the plaintiffs to maintain their action. On the quantum of damages, this court can give no opinion. All which is ordered to be certified to the court of the United States for the second circuit and district of New York. 4 P. 111; 8 H. 451. Parker v. United States. 1 P. DANIEL PARKER, Plaintiff in Error, v. THE UNITED STATES. 1 P. 293. Under the act of March.16, 1802, (2 Stats. at Large, 132,) the adjutant and inspector general while stationed at the seat of government, was not entitled to additional allowances by way of double rations. ERROR to the circuit court for the District of Columbia. Jones, for the plaintiff in error. Wirt, Attorney-General, for the United States, submitted the case. All the material facts of the case are stated in the opinion of the court, which was delivered by DUVALL, J. * An action was commenced in the circuit court, by the United States, against the plaintiff in error, to recover the sum of $2,337.60, which he had received from Mr. Leslie, the paymaster, then stationed at the seat of government, on a claim for double rations, due him in his capacity of adjutant and inspector-general of the army [*294] of the United States, from the 30th of September, 1818, to the 31st of May, 1821. On the settlement of the account of the paymaster, this item was disallowed by the second auditor, who considered it as wrongfully paid; and the amount was afterwards directed to be charged to the personal account of General Parker. The office of adjutant and inspector-general of the army, with the rank, pay, and emoluments of a brigadier-general, was created by the Act of March 3, 1813. The plaintiff in error was appointed to that office; and his commission bears date on the 1st of May, 1816, with the rank of brigadier-general from 22d of November, 1814. The pay and emoluments of the officers of the army are fixed by the act of 16th of March, 1802, and the act of the 12th of April, 1808.2 By the 5th section of the first-mentioned act, it is provided that the commanding officers of each separate post shall be entitled to such additional number of rations as the President of the United States shall from time to time direct, having respect to the special circumstances of each post. Under this authority, the President has at various times designated military posts and stations, and allowed double rations to the commanding officers; and in the case of General Wilkinson, when stationed at New Orleans, and commanding there in quality of a commanding officer at a separate post, he allowed that officer treble rations. It appears, by the record and documents |