
    George versus Braden.
    George sold stock to Braden, and agreed that he -would take it back and return the price if requested, and delivered a certificate. Held, that Braden could recover the price without tendering the certificate; but that he must surrender the certificate to George or file it in court, before execution could issue.
    October 26th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 129, to October and November Term 1870.
    This was an action of assumpsit brought, July 2d 1866, by George Braden against John George, to recover $2000 — the sum paid by plaintiff to defendant for one-third of a share of stock in the Rynd Oil Company.
    The jury found that in March 1865, the defendant said to the plaintiff, that if he would take the stock at $2000, he (defendant) would guaranty to pay him from 86 to 37 per cent, and his money back whenever called on; the plaintiff paid him the $2000, and the defendant afterwards gave him a certificate for the stock. About a year afterwards, the plaintiff demanded repayment of his money; no dividend had then been declared. The defendant refused to repay the money. The suit was brought without a tender of the stock at any time.
    The defendant asked the court to charge:—
    “ This being an action of assumpsit, the plaintiff cannot recover without tendering or offering to transfer to the defendant the stock he held'before the bringing of the suit, and there being no evidence in the case of such tender or offer to transfer, the plaintiff cannot recover.”
    The court (Buffington, P. J.) answered the point in the negative ; and there was a verdict for the plaintiff for $2500.
    The defendant took a writ of error, and assigned the answer of his point for error.
    
      Edgar Cowan and S. P. Laird, for plaintiff m error,
    cited Connor v. Henderson, 15 Mass. R. 319; Hunt v. Silk, 5 East 419; Adams v. Richards, 2 H. Bl. 574; Buffington v. Quantin, 5 Harris 310; Dailey v. Green, 3 Id. 118; Kase v. John, 10 Watts 107; Frankenfield v. Freyman, 1 Harris 56; 2 Chitty’s Pl. note 279.
    
      H. D. Foster, for defendant in error,
    cited McCabe v. Burns, 16 P. F. Smith 856; Babcock v. Case, 11 Id. 427.
   The judgment of the court was entered October 30th 1871.

Per Curiam.

We think there was no error on part of the court in holding the plaintiff entitled to recover in this case without a previous tender of the certificate of an interest in the Rynd Farm Oil Company, or the stock issued upon it; that is an equity which may be still protected by making it a condition of granting execution that it shall be surrendered to the defendant, or filed in- court, before execution shall issue. This we think the court ought to do. With this let judgment be

Affirmed.  