Mr. Justice Paxson
delivered the opinion of the court,
The fact that the bonds deposited by the defendant below with John A. Bigler, to secure the former’s note for $500, had become worthless, would not of itself constitute a valid defense t-o the note in suit. Bigler had no power to sell the bonds, and the defendant gave him no instructions to do so. Hence, if they remained in Bigler’s hands the depreciation thereof must fall upon the defendant. His remedy was to order their sale, or pay his note and take up the bonds. It appears, however, that the bonds were not in Bigler’s possession at the date of the assignment. They did not pass to the assignees as. a part of the assets, nor have the assignees been able to find them, after diligent search.
It is incumbent upon the assignees, before they can recover, against the defendant, to produce the bonds or account for them This is sustained by abundant authority: Ocean National Bank v. Fant, 50 N. Y. 474; Spalding v. Bank, 9 Barr 28 ; Bank v. Peabody, 8 Harris 454; Story on Promissory Notes, 445, 448; Edwards on Bills, 503, 4 ; Smith v. Rockwell, 2 Hill, 482. It is not a sufficient answer to say that as the bonds are now of no value their non-production is damnum absque viyuria. At the time they were deposited with Mr. Bigler, and for a considerable time afterwards, they were worth par. The fact that they were not in his possession at the time of his failure is evidénce to go to the jury of a conversion of the bonds by Bigler. This, however, may be explained or rebutted by showing what he did with them. The burden of proving this was upon the plaintiffs below. This burden cannot be shifted upon the defendant by reason of Bigler’s absence or the confusion in which he left his papers and his business generally. These are matters for which the defendant is not responsible.
During the trial below the defendant made a tender of the debt, interest and costs, and demanded his bonds. The plaintiffs were unable to produce the bonds, but produced and offered other bonds of similar character, identical with those in controversy save in the numbers. These the defendant refused. The tender of the bonds was not good, for the reason that there was no proof they had been continuously in Bigler’s possession. They might have been purchased after they had become worth less. Had there been proof that the bonds offered to defendant had been in Bigler’s possession from the time he made the loan to defendant to the time of the assignment, it. would have been sufficient, under the authority of Gilpin v. Howell, 5 Barr 41, where it was held that £v where one purchases stock for another, and takes a transfer on the books of the bank into his own name, it is sufficient if he always retain so much of the same stock as will enable him to transfer to his principal, on demand, the whole amount purchased for him, and that it is not necessary that he should retain the identical scrip or shares.”
If, therefore, Bigler had always retained on hand six $100 coupon bonds of the Masonic Hall Association of the city of Harrisburg, as the collateral to defendant’s note, it would not matter that the defendant’s bonds had by accident been mixed with other bonds of like character, and disposed of to other parties. Under such circumstances the tender of any other six similar bonds would have been sufficient. As the case stands there is nothing to show that Bigler did not sell defendant’s bonds at their face value, and replace them with other bonds after their depreciation. It is not for the defendant to show a- sale or conversion by Bigler, if snob be the fact. It is for the plaintiffs to account for the bonds. There is no hardship in this rule. They or their assignors are the only persons presumed to have knowledge of the transaction. When they attempt to perform this duty the defendant will have an opportunity of learning what became of his property.
I have indicated the principles which should rule this case, without referring specifically to the numerous assignments of error. What has been said sufficiently covers the case.
Judgment reversed, and a venire facias de novo awarded.