Frost v. Lowry. Dec. Term, 1846. IN BANK. the offer to restore the consideration, if any, paid for the goods so obtained by fraud, must be made, if the vendor would avoid the sale; but, in this case, to whom? To the sheriff having in his hands the attachment, as I think, for he had seized upon all the title which the fraudulent purchaser had in the goods, and he held it bona fide-and the purchaser had in the goods a full title, or a right to receive in their stead, by and for them the acceptance of Eustaphieve; or, at any rate, that acceptance should have been shown to be in the possession and power of the vendors when they came to reclaim their goods, and they should have held it uncanceled, at all times ready to be disposed of as the court might direct, and subject to be taken by the sheriff in attachment on the surrender of the goods. This they failed to do. They erased the acceptance, released Eustaphieve, and brought back the mutilated paper, utterly worthless, and in that condition offered to restore it. What guaranty have we, what assurance had the court and jury, that they did not release Eustaphieve for a price? And the burden of proof was not upon the sheriff to show it. celed the acceptance of Eustaphieve; the presumption is, that they did it on payment of the draft. The plaintiff's had can Under these circumstances, we contend that the plaintiffs in replevin could not sustain their action, and that the Court erred in refusing so to charge the jury. E. Lane and M. R. Waite, for Defendants in Error. We do not understand the counsel for the plaintiff in error, as denying that this is a case coming within the general principle, that a fraudulent purchaser of goods acquires no title as against the vendor, and has no interest which can be seized by attachment or on execution, but they seek to reverse the judgment of the Common Pleas, because, at the time of suing out their writ to recover the possession of the goods from the sheriff, the defendants in error were not in a situation to rescind the contract and restore Stout to all the rights transferred by him Frost v. Lowry. Dec. Term, 1846. to them in the purchase. On the part of the defendants in IN BANK. error, we freely admit, that the contract cannot be rescinded in part and enforced as to the remainder, but that all parties must be restored to their original rights; so that the only question to be considered, in this part of the case, seems to be, whether the erasure of the acceptance of Eustaphieve, before the replevin, will take away the right of the defendants in error to reclaim the possession of their goods. In the first place, then, let us see what was the situation of the parties when the contract was concluded. An ordinary transaction of the kind would be this: The vendors would contract to sell the goods, and the vendee agree to give therefor his draft on Eustaphieve, and after the draft was delivered, the acceptance would be obtained by the vendors. All Stout could claim, then, upon a rescission of the contract, would be the return of his draft without the acceptance; for, when he concluded the contract on his part, the acceptance had not been procured, but was a subsequent act of the vendors themselves. It may be true that there was, previous to the sale, an agreement by Eustaphieve to accept, but the nature of the transaction is in no way changed by such an agreement, for the acceptance did not in fact take place until after Stout had closed his part of the contract, and constituted no part of the rights which he transferred to the vendors. If Eustaphieve gave his acceptance on account of funds of Stout in his hands, the right to receive those funds was, by the acceptance, transferred to the defendants in error, and, upon a rescission of the contract, must be restored to Stout. This is not done by a redelivery of the draft with the acceptance uncanceled, but by a release of the obligation of Eustaphieve to pay to the defendants in error instead of Stout. The effect of the draft is simply to transfer the indebtedness of Eustaphieve from Stout to the defendants in error, and any thing which annuls that transfer, restores Stout to all his rights. One of the counsel for the plaintiff in error insists, that the acceptance is precisely the same in law as the note of Eusta Frost v. Lowry. 1846. IN BANK. phieve with the indorsement of Stout, and says that the case Dec. Term, is a little more simplified and brought more directly within the authorities by so considering it. The latter part of the proposition is undoubtedly true, but the difficulty consists in making the acceptance a note. A note would be an agreement to pay Stout, which he, by his indorsement, transfers to the defendants in error. The acceptance is an agreement to pay a debt to the defendants in error, at the request of Stout, and is made to the defendants in error personally, and after the rights of Stout, so far as he himself was concerned, had been transferred. Upon the note, Stout could maintain an action by the mere redelivery to him by the defendants in error. Upon the acceptance, he can only maintain an action upon the order of the defendants indorsed upon the draft. It is true, the acceptance may be evidence of an indebtedness from Eustaphieve to Stout, which would give Stout a prima facie right to recover in a proper action, but it is not an instrument upon which he can sustain an action. But, there is another view of the case equally strong for the defendants in error. Here, in fact, are three parties to the contract the defendants in error, the sellers, contracting to sell-Stout, the purchaser, contracting to buy and to give his draft on Eustaphieve for the purchase price, and Eustaphieve, the drawee of the draft, agreeing to pay if the sellers will deliver the goods. This is the situation of the parties when the goods are sold. The vendors wish, however, to avoid the contract and take back their goods. To do this, they must restore all parties to their original rights, and the question is, how it shall be done. It is clear that the obligation of all parties to pay for the goods, must be canceled; and Eustaphieve, as one of the parties to the contract, has rights as well as Stout. The draft cannot be given to Eustaphieve, because by his acceptance he is allowed to charge the amount of the draft over to the account of Stout, and to give it to him, would be entrusting to him an evidence of payment which he had never made. It cannot, in justice to Eustaphieve, be delivered to Stout Frost v. Lowry. Dec. Term, 1846. with the acceptance uncanceled, because one of the induce- IN BANK. ments to the acceptance was a sale of the goods; and, when that sale is rescinded, fair dealing would require that the acceptance should be canceled. Stout is not injured by canceling the acceptance, because if Eustaphieve accepted in consideration of a previous debt, that debt is not canceled by the erasure of the acceptance, nor is any evidence of the debt which existed before the contract was made, thereby destroyed. Eustaphieve is not benefited, because if he owes a debt to Stout, he must still pay it, and that, too, six months sooner than he would otherwise have been compelled to do. All parties, then, by canceling the acceptance, are restored to their original rights, and injustice is done to no one. But again, as between the defendants in error and the sheriff, this question of the rights of Stout is res inter alios acta, with which the sheriff has no concern, and wholly irrelevant to the issue between the parties. Such is the language of the Court in the case of Stevens v. Austin, 1 Met. Rep. 557, where this precise question was argued and decided, if not necessarily, before the Court. It is true, that case might have been decided upon other grounds, but it is sufficient to say that it was decided upon this. As the authority of the case is, however, doubted by the counsel for the plaintiff in error, it may be well to consider how far the doctrine there laid down, is in accordance with principle. To a certain extent the sheriff has an interest in the question. He has a right to inquire whether we are in a situation to rescind our contract; but as to the question of the rights of Stout to which he must be restored, Stout is the only party to be consulted. If Stout is satisfied with his situation, the sheriff must be, for he claims only what belongs to Stout. But, one of the counsel contends, that after the attachment, if the defendants in error desired to rescind the contract, they should have delivered the draft with the acceptance to the sheriff, "because," to use his own language, "all the rights, credits, moneys and effects of Stout, were, by the operation of Dec. Term, 1846. Frost v. Lowry. IN BANK. law, transferred to the attaching creditors by the service of the writ." To the extent of Stout's interest in the goods, this proposition is true, but no farther. If Stout had a lien on, or any other interest, direct or indirect, in the goods, that interest is subjected by the attachment. But such is not this case. The object of the counsel, however, seems to be to reach by this attachment the debt from Eustaphieve to Stout, which he supposes to exist. Admitting, for the sake of argument, that Eustaphieve is indebted to Stout, let us see how the attaching creditor would be benefited by the possession of the draft and acceptance. The paper, if he had it, would show that Eustaphieve had promised to pay the defendants in error $1,565.38 for Stout, in six months after date, and is prima facie evidence, as the counsel contends, that Eustaphieve is indebted to Stout in that amount; but, until that draft is indorsed by the defendants in error, or in some other manner legally transferred to the sheriff, Eustaphieve cannot be compelled to pay that money to any other person than the defendants in error themselves. A mere delivery of the draft to the sheriff, gives him no right to collect the money, and anything more than a simple delivery to the sheriff, as the representative of Stout, would put it out of the power of the defendants in error to do the very thing they were striving to do- that is, rescind the contract in toto, and make that draft and acceptance of no effect whatever. The counsel contends, that the acceptance contains evidence of the indebtedness of Eustaphieve to Stout. Admit that it does, and how would the attaching creditor be benefited by the possession of the paper? He could not sue Eustaphieve upon it and collect the money. It is not even a promise upon which suit can be brought, but evidence which can be used to show an indebtedness. But by subjecting the evidence of the debt to the process of the Court, he does not subject the debt. Such an argument, when properly stated, would be simply this: that the possession, by the attaching creditor, of the evidence of a debt, will enable him to collect that debt for his own benefit; or, in other words, that the service of the garni |