The question whether the defence made would be valid if the plaintiff or the party whom he represents, having possession of the collateral, had lost it through his own negligence, or for any reason was not ready to return it simultaneously with the payment of the notes (Stuart v. Bigler's Assignees, 98 Pa. St. 80; Ocean National Bank v. Fant, 50 N.Y. 474; Cass v. Higenbotam, 100 N.Y. 248; Whitcher v. Dexter, 61 N.H. 91; Johnson v. Creamery Association, post, p. 437), has not been considered, for it does not arise upon the facts presented. The 176 shares of stock were returned to the defendant prior to the commencement. of the action, and no damage is, or can justly be, claimed by the defendant on account of any act or omission of the plaintiff respect to that stock. When the eighty-one shares were placed in Pierson's possession by the defendant, Joseph Lawton, the plaintiff in interest, was the absolute owner of the two $1,000 notes, and had possession of them. As Pierson indorsed the notes without, recourse, he was not liable upon them; and he had no authority from Lawton to act for him in regard to them or the collateral Lawton never had the certificates of stock in his possession, nor ratified Pierson's acts in any way. The defendant knew, or by the exercise of reasonable care would have learned, that Pierson had disposed of the notes. In substance and effect, he appointed Pierson trustee to hold the stock for the benefit of the owner of the notes until they were paid, if the owner saw fit to ratify his acts, and for his own benefit after the lien was terminated. The plaintiff was no more responsible for the stock than he have been for payments of money made by the defendant Pierson on account of the notes. If there was negligence in the care of the certificates of stock and the accompanying letter of attorney, it was not the negligence. of the plaintiff, and is ground for delaying payment of his notes or for an offset against the amount due upon them. Bank of the United States v. Peabody, 20 Pa. St. 454.

Judgment for the plaintiff.

All concurred. *Page 424