
    In Bank.
    Dec. Term, 1846.
    
    Elisha S. Frost vs. Jared A. Lowry.
    If A obtain goods of B by false pretences, and give therefor an accepted draft upon C — an accommodation acceptor — it is no defence to an action of replevin instituted by B against a stranger, in whose possession the goods are found, that the draft had not been previously returned to A.
    This cause comes into this Court by a Writ or Error to the Supreme Court of Lucas County, made returnable in Bank. ■ i
    The original suit was replevin, commenced in the Court of Common Pleas by the defendants against the plaintiff in error, and verdict and judgment in their favor. A bill of exceptions was taken, during the trial in the common pleas, from which the following facts appear:
    One Nathan L. Stout, on the 6th day of July, 1843, purchased of the Lowrys, defendants in error, in the city of New York, a bill of goods amounting to the sum of $ 1,565.38, for which he gave, at the time of such purchase, his draft, payable in six months, to the order of the defendants ip error, accepted by A. A. Eustaphieve.
    While contracting for the goods, Stout represented himself as entirely free from debt, and as the owner of property, real and personal, in his possession, worth from two to three thous- and dollars; all of which statements were utterly false, he being, at the time of such purchase, indebted in large amounts, and owning no property of any description whatever. The goods were left in the possession of the defendants in error and shipped by them for Logansport, in the State of Indiana. On their way, in a warehouse at the city of Maumee, they were taken by the plaintiff in error, Frost, as sheriff, by virtue of a writ of attachment issued against Stout, at the suit of Thomas C. Rockhill, who had claims against him to a large amount.
    
      The defendants in error having discovered Stout’s fraud, sent to Maumee, found him there, tendered to him the draft, with Eustaphieve’s acceptance erased, but saying to him, they wished to keep it till the trial, if he was willing; that he could take it, however, if he desired. Stout replied, it was just as well, and that the draft might remain in the hands of the attorney for the defendants in error, subject to his order. They, the defendants in error,-then explained their claim to the plaintiff in' error, Frost, and demanded the goods, which were refused. A writ of replevin was then sued out, the goods replevied, and the rigl^t of property and possession is the controversy which followed in respect thereof.
    On the trial, the defendants in error surrendered the draft, with the acceptance canceled, to the Court, to be disposed of as the Court should direct.
    It was proved on the trial by David B. Stout, brother of Nathan L., that Eustaphieve had, probably, no funds in his hands to meet his acceptance, and that Nathan L. Stout was present at the time of the replevin and made no objection. Other-facts appear. in the bill of exceptions, but they áre not material.
    The Court were asked to charge the jury, amongst other things, that if the goods were obtained from the .defendants in error, by Nathan L. Stout, by fraud, they could not rescind the contract without tendering back to Stout the acceptance of Eustaphieve.
    This instruction was refused, and exception taken. Other instructions were asked and refused, and exception, likewise, taken, as well as to the entire charge of the Court, as given to the jury.
    The Supreme Court on the circuit, on a writ of error, affirmed the judgment of the Common Pleas, and the plaintiff now seeks, by the prosecution of this writ, to reverse the judgment of the Supreme Court.
    
      
      T.’Ewingf ior the Plaintiff in. Error.
    The' bill - of exceptions- in this cáse' shows, that .on the 6th. day of July,, 1843,' Nathan L. Stout purchased of J. & A. ■Lowry, in New York, á .quantity of goods, amounting in' value to $1,565.. 38; that, at the. time of-the purchase,'he falsely represénfed himself as a merchant' in business, free' from debt; that he gave for the goods, -at the timé, his own draft, for .the amount, payable in-. Six months and accepted by Alexander' A. Eustaphieve'. The, goqds were delivered' to him and the boxes • .containing- them marked 'with his name, and. directed' to Lo■gansport,.-Indiana. ■ On their way to. that .place,-ánd while in a warehouse at Maumee -City-on the 1st of August, 1843, - the goods were seized by Elisha- S. 'Frost, sheriff of Lucas county,. on an-attachment in favor of Thomas C. Rpckhill, of Philadel-. phiá,'against..said Nathan L-,Stout." On the 9th of August,J.. & A. Lowry, having ascertained 'that the. representations' of said ¡Stout, as to.-h.is. situatioh',.and-property, were 'false, and that he.was in fact.insolvent, came' to Maumeé-;City, tendered back to'.said Stout- the.draft given.by himfpr the goods having first eyased the acceptance of Eustaphieve — and demanded thé goods.: S'tout 'being'unable to redeliver them,'J..& A. Lowry sued out their writ of -replevin and took, them from the cus.-to.dy of the Sheriff. On the trial, of the; cause, tlie draft afore.said. was brought into" court, -with the acceptance of Eustaphieve erased, and' held"to be disposed of as the Court might direct. The. Court instructed 'the jury, that the plaintiffs were entitled to recover, 'and- sealed a bill of exceptions, setting forth the above fact's,.among others'which are unimportant as regards ' the question.' which we propose to raise on this' motion. The ' fraud practiced by Stout upon. J.-&. A. .Lowry, in the'purchase of the goods',-made the-contract voidable at their option,- but not vpi'd per'se. ' The draft which had-been given them in. exchange for the goods, was not whát Stout had represented it. The acceptance was all right, but the drawer was not a solvent person, as had been falsely represented. They, therefore, had a right to avoid the contract.
    But to do this, according to a very plain principle of law, they must have restored the draft with the acceptance upon it, in the same condition in which it was when they received it. The draft with the acceptance of Eustaphieve upon it, was precisely the same in law as a note of Eustaphieve for a like sum with the indorsement of Stout. The case then is, perhaps, a little simplified, and brought more directly within the authorities, by considering this draft as the note of Eustaphieve, indorsed by Stout, which has been given to Lowry in payment for the goods. Then, when the vendors seek to avoid the contract and reclaim the goods, because of the insolvency' of the indorser, they strike out the name of the maker of the note, and offer to return it so canceled. It is exceedingly difficult to conceive for what fair or honest reason this erasure was made, and it is left in the case wholly without explanation. We have the simple fact, and must endeavor to find the law that arises from it.
    This case is much like that of Coolridge v. Bingham, 1 Metcalf, 547. Bingham bought goods of Coolridge, and gave him in payment a note drawn by G. C. Whitney in favor of G. Whitney for $306 at four months, and purporting to be indorsed by G. Whitney and D. M. Whitney, but the indorsements were forged. The plaintiff never returned or offered to return the note, but brought assumpsit for goods sold, and it was held that he could not recover.' That in order to rescind the contract, he must first place the other party in Statu quo — he must restore what he had received. The rule of law is precisely the same where the party defrauded in part, but who received any thing of value, chooses to hold void the contract and retake the goods, he must restore whatever he has received, in whole or in part, as payment or to secure payment.
    It is contended, however, inasmuch as the goods in the case at bar had passed out of the custody and control of the fraudulent purchaser, and were replevied from the sheriff who had taken them in attachment, that an offer to restore the acceptance was unnecessary prior to the replevin; or even subscquently ; and Stevens v. Austin, 1 Pick. Rep. 557, is cited in support of the position. That was the purchase of a wagon; the contract was fraudulent on the part of the purchaser, and he obtained a bill of sale of the wagon by fraud; possession was not delivered to him, and he took away the wagon without the consent of the owner, and sold and delivered it to the defendant, who had notice of the fraud and trespass. The money and note which he gave for the wagon were not tendered back before suit, but brought into court on the trial to be disposed of as the court might direct. It was held, that the plaintiff could recover without making the offer of restoration.
    The decision was right, but placed by the learned Judge upon the wrong ground. The wagon never having been delivered, or gone out of the possession of the owner with liis consent, he had a right to his action of trespass against the fraudulent vendeé for taking it; and he need not have tendered back any thing, for he never parted for a moment with the possession of the property, and its taking was an actual rather than a constructive trespass. The Court, however, seem, by the reported case, to have excused the tender, simply on the ground that the property had passed' out of the hands of the fraudulent vendee; that the defendant, who knew of the fraud, had no right to claim a tender as to himself, for he was entitled to nothing, and could not set up a want of tender or restoration to the fraudulent vendee, because it was res inter alios, with which he had no concern. Now, this position, with all due deference, is wholly untenable, if it be applied to an actual though fraudulent purchase, accompanied with delivery of possession. The purchase, because of the fraud qf the vendee, is not void, but voidable at the option of the vendor. The purchaser sells the goods and delivers possession to a third person, who .has notice to charge him; his title, like that of the first purchaser, is good, until the vendor take measures to avoid it. It is defeasible just as the title of the first purchaser was defeasible, and not otherwise; and until the vendor take the necessary steps to avoid it, it is good; and it will not do to say that the steps necessary to avoid the title of the first purchaser, or an act done by the original vendor, confirming his title, are res inter alios. , They are not so; for there is that privity in estate, or more strictly, dependency of title, which makes those acts, according to the very strictness of the law, operative on the title of the last vendee. Suppose the original vendor receive full payment of his fraudulent purchaser, or give him a release for the price of the goods, or do any act which may release him, can it be for a moment doubted that the vendee, with notice of the fraudulent purchase, is released also, although these things are res inter alios acta ? And is it not equally clear, that neglect of the vendor to do an act necessary, as between him and his fraudulent purchaser, to avoid the contract, is equally necessary as against the vendee of that purchaser. Can it be for a moment held, that he can enable himself to bring and sustain suit against the vendee of his purchaser, with- , out placing himself in a situation to make void the sale to his purchaser ?
    But it is very true, after a transfer by the fraudulent purchaser, he can neither say nor do any thing which will impair the title of his vendee. He must be merely passive, and cannot aid the vendor by his admission or acquiescence to sustain his action, for it is not by assent or acquiescence, or agreement with the fraudulent purchaser, after he has parted with the property, that the original contract of purchase is to be avoided, but by the exercise of a legal right existing in the vendor, at and from the time of the sale, by reason of the fraud to avbid it.
    Now, all acts done by the fraudulent purchaser, previous to the last transfer, affect his title to the property, and through that title affect the vendee who has notice — and all acts done by the first vendor to affirm the sale, to waive objection to the fraud, to qualify or disqualify himself to take advantage of it and regain his property, bear also on the last vendee and confirm or destroy his defeasible title. Under these circumstances, then, 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. The plaintiffs had canceled the acceptance of Eustaphieve; the presumption is, that they did it on payment of the draft.
    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 to them in the purchase.: On the part of the defendants in 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 Eustaphieve with the indorsement of Stout, and says that the case 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, hov 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 with the acceptance uncanceled, because one of the inducements to the acceptance was a sale of the goods; and, when that sale is rescinded, fair dealing would require that the ceptance 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 before1 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 aftér 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, cred-1 its, moneys and effects of Stout, were, by the operation of ‘ law, transferred to the attaching creditors by the service of f 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 tolo, 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. Suph 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'shee process upon a witness who can prove the existence of a debt from Eustaphieve to Stout, subjects that debt to'the power of the attachment.
    Again — it is apparent from the evidence, that Eustaphieve was but an accommodation' acceptor. Stout went to New York - totally insolvent, and having not a-dollar of his own in the world. He carried with him between one and, two hundred dollars in ¡money belonging to other persons ; and while there, he purchased a stock of goods on credit, amounting to between five and six thousand-dollars. Nowj where has Stout obtained the funds which he has placed in the.hands of Eustaphieve ? His brother who sent him to make this purchase in Buffalo, does not know, and we doubt if any one else can tell. With such a body of proof, no jury would hesitate to say that .Eustaphieve accepted this draft wholly for the accommodation of Stout. If so, then no one is injured by erasing his acceptance; and who so good a judge of this as Stout himself? Stout-could not enforce such an acceptance; and if Stout cannot, most certainly the attaching creditors will not be allowed to do it.
    Upon principle, then, as well as authority, we contend that Stout is the only person who will be allowed to judge of his rights under the contract — that he is the only mail we are compelled to deal with, and that if he is satisfied, the sheriff and attaching creditor must be.
    If we are correct in this position, is there not an end of the case ? When the draft was tendered back to Stout, the acceptance was erased, and he, by his silence, has given an implied assent to this act of the defendants. He knew how far his rights had been injured by this proceeding, and, so far as the case shows, was perfectly satisfied.
    
      Spink Sf Hopkins, in reply.
    The first inquiry that presents itself, from the facts in this case, is, whether the vendors of the goods in ‘controversy had, under any circumstances, the right to rescind the contract ?
    
      The rule upon that subject seems to be, that where the fraud extends to the whole transaction, embracing the entire consideration, the sale is absolutely void, and may be so treated by the vendor; but where any portion of the consideration is paid or secured, the contract is voidable only upon certain conditions, to be performed by the vendor.
    In the case of Coolidge v. Bingham, 1 Met. Rep. 550, the Court say: “ The plaintiff founds his claim on two grounds. £ In the first place, his counsel contend that he had a legal right ‘ to rescind the contract, set out in the special count, without £ restoring, or offering to restore, the note therein-mentioned to £ the defendant.
    ££ This right, we think very clearly, cannot be maintained. £ A contract cannot be rescinded by one of the parties, for the £ default of the other, unless both of them can be put in the £ same state as before the contract. It cannot be rescinded as ‘ to one party, and remain in force as to the other. It must be £ rescinded, in toto; and if the party rescinding has received £ property of any value, however inconsiderable, under the con- ‘ tract, he must restore it to -the other party.
    ££ This rule of law is well established, and is not controverted ‘ by the plaintiff’s counsel;. but they contend that the note £ received by the plaintiff is worthless, and may be treated as a ‘ nullity. There is, however, no proof that the note is worth- £ less. It is unquestionably good as against George C. Whit- £ ney, the. maker; and if it had been restored to the defendant, ‘ he could maintain an action against him, notwithstanding the 4 forged indorsements. It is true that, eventually, the note £ may become of no value, either by the death or insolvency of £ the maker, or otherwise, but this possibility does not excuse 1 the plaintiff for not returning it. He must, if he undertakes 1 to rescind the contract, either restore the note, or prove £ clearly that, in no event, can it be of any value. This he has 1 failed to do, and cannot, therefore, be allowed to treat the ( note as a nullity.”
    
      The same principle is recognized, in Potter v. Titcomb, 22 Maine Rep. 300, and in 12 Ohio Rep. 363 ; 3 Conn. Rep. 483 and 488; 2 Conn. Rep. 371; 2 Wheaton 13, and 3 Ohio Rep. 235.
    Was the acceptance oif Eustaphieve of any value ? If so, then the Lowrys were bound to return it to Stout, if they desired to rescind before the attachment, and, if after, then to Rockhill or the sheriff; because all1 the rights, credits, moneys and effects of Stout were, by operation of law, transferred to the attaching creditors, by the service of the writ.
    “ An acceptance,” says Chitty on Bills, 174, “ is an engagement to pay the bill according to its tenor;” and on page 183: “ An acceptor without consideration is liable, if the bill is in. the hands of a third person for a valuable consideration.”
    For aught that appears from the bill of exceptions, Eustaphieve was abundantly able to pay the amount of the bill drawn on him — was untainted with the fraud of Stout, and, by presumption of law, in possession of Stout’s funds, to meet the draft. “ A bill of exchange imports that a debt is due from the ‘ drawee to the drawer, which is assigned to thé payee of the ‘ bill; and if the drawee accept, this is an acknowledgment, on ‘ his part, that he has funds of the drawer in his hands to the ‘ amount of the bill.” 21 Wend. 502.
    This acceptance, then, was of some value, and of a value equal to the goods purchased of the Lowrys.
    Stout had an interest in the goods equal to their full value, subject to the right that the vendors had, to rescind the contract, by returning him Eustaphieve’s acceptance, in order that he might draw his money, deposited with Eustaphieve, to meet his draft. When the goods were attached, all Stout’s interest passed to Rockhill, but it did not in any way affect the rights of the Lowrys. The same right to rescind existed as to Rockhill, as had previously existed as to Stout, and by tendering bim Eustaphieve’s acceptance, with the freight and charges advanced by Rockhill, he would have been entitled to the goods.
    
      ; As the case is presented by the- bill ol exceptions, one of three propositions, is true —'
    First: 1 That the Lowrys have got the goods and the. money ' of Eustaphieve; or,
    Second: By a .collusion between Stout and- the Lowrys, the money has ■ been drawn from Eustaphieve and paid- over to Stout.; or, ' '
    Third;' By a like fraud, it', has been retained between the Lowrys and Eustaphieve. . > ' •' ■
    'In either, event, it is a fraud upon Bockhill, and deprives him' of his legal right to the proceeds, either of the, goods attached or the- draft, their equivalent. . ’' ■'
    , From a Careful examination of .all the authorities upon this subject, as'well those cited by the defendants’, counsel ás the books generally, we. -have been unable to- find, 'any where,' a single case where the Court have held that a vendor- might rescind a contract, where the whole, or -any part of the consideration'had been-'paid, without a restoration of, or an offer,to restore, the amouiit paid. • '
    ' .That the'vendorj in the case at bar-, had- 'the right to rescind this contract by restoring Eustaphieve.’s acceptance, uncanceled, we freely' admit;.but having failed 'to.do 'so,, and having destroyed the' draft-, they have forfeited their right to rescind, and ■consequently.their right to recover. -It.iá claimed-.by:the-defendants; that the' case of Stevens v. Austin, 1 Pick. 557, is .in point, and it is relied- on by them as settling the' principle in the present case. " .In the one cited a part of the'consideration, was paid, but yet- it differs from the one under' consideration in a-very important particular'. . Instead of being an. effort to rescind a cdntractj as in the present case; it is clear that; no contract'was ever made, and upon that view alone can the decision be reconciled with the whole 'current-of authorities. - A preliminary agreement had been entered into,- and money paid upon it, but no delivery of the .property. -
    In a sale of .chattel property,; a delivery is. not only .an essential:, but an indispensable requisite-; yyithout.it, the right of property cannot be divested, and the owner may reclaim it wherever it may be found, even in the hands of a bona fide purchaser. If, however, as in our case, the possession had been delivered by the vendor to the vendee, a different rale would prevail, and an actual purchaser, for a valuable consideration, would be protected. The reason of this rule, and the distinction taken above, is fully recognized and illustrated in the opinion of Chief Justice Savage, in Root v. French, 13 Wend. 572. '
   Woox>, C. J.

One question only is raised upon this record by the counsel for the plaintiff in error: whether, under the circumstances of the case, the defendants in error could legally rescind the contract for the purchase of the goods, without the return of Eustaphieve’s acceptance- to the purchaser, Nathan L. Stout ? A determination of this one question, decides whether the Supreme Court erred or not, on the circuit, in affirming the judgment of the Court of Common Pleas, in refusing to charge the jury, that, without such return, the defendants in error were entitled to recover.

The evidence clearly shows, a most infamous fraud had been perpetrated by the purchaser of the goods. Under the false representations made as to his property and circumstances, by Stout, it is certainly right to presume, the defendants in error relied, at least, as much on his responsibility as the drawer of the bill, as on the acceptance of Eustaphieve, of whose ability to pay, nothing, in fact, is shown.

Where goods are obtained by fraud, the purchaser acquires no lawful possession as against the vendor, for the reason that his assent to the delivery was procured by such means. To say the least, such contract is voidable. It may be disaffirmed, and the goods reclaimed.

It is nevertheless true, to enable the vendor to repossess himself of the goods, he must restore the vendee to his originá! rights. The consideration paid must be returned — the security given must be tendered back, or delivered up to be cancelled. But, if this be waived by the vendee, no other person has,the right to complain, and such appears to us to be the case at bar. The bill'was left; by the consent of Nathan L. Stout,, with the attorney, subject to .Stout’s order; with, the acceptance erased1 What reason has either the plaintiff in error, Frost, orBockhili the attaching creditor, to complain Of this ? They had neither property in, nor lien ■upon this acceptance, and Stout had the perfect right to waive its return, or to receive the bill without it, and the result, in our view, Would be precisely’the same ' — the rescission of the contract.

But suppose this were not so - — useless anf! idle ceremonies are neither favorites.of the law, nor, required by common .sense; and if the withholding of the acceptance can,' in no event, be of prejudice to Stout, its return is, by no means necessary to enable the defendants in error to reclaim the property.

From the^evidence of David B. Stout,. Eustaphieve w.as, doubtless, an accommodation acceptor, with no funds' to. meet this liability; and when the bill was,returned, and the acceptance erased, the condition of' Nathan L. Stout was no worse than .with an accommodation acceptance in han'd.

. But, if the bill were in fact drawn upon funds in the hands of Eustaphieve, and .accepted by híni upon the strength of such' funds, the erasure of the-acceptance makes his (Stout’?) condition no worse. No debt’- — no obligation,has been discharged, by the acceptarice, without payment, and the. acceptance being destroyed, the same!;'funds remain, subject to Stouf's order, in Eustaphi.eve’s hands.

The case cited from 1 Metcalfe, 547, is by no means analgous to thjs. There, B bought goods of C, and gave in payment a note, with two forged indorsements upon it, but the-name of the'maker was not a forgery: The note was not tendered back, but assumpsit' brought’ for the goods sold, and it was held the plaintiff could .not recover, . .-The case was 'dpubtless correctly decided; for-Bingham, .the1 defendant, had the right to the return of the note, that he’might avail himself of the maker’s responsibility, whose name whs' genuine; and, without it, he was not restored to his original rights. But had the names of all the parties to the obligation been false, it is by no means certain its return would have been considered necessary, to enable the plaintiff to have recovered.

Where nothing of value is received, nothing need be returned.

Judgment Affirmed.  