delivered the opinion of the court :
This case involves several questions, some of which are of considerable importance, and the decision of which is attended with no little difficulty. It is an action of replevin, instituted in the court below, by the appellees against the appellants, to recover a quantity of corn and flour, which had been sold by separate and distinct contracts by the appellants to certain persons, from whom the appellees claim to have derived title. We do not think that the county court were wrong in rejecting the defendants’ first prayer. The principle is unquestionable, that property while in the custody of the law cannot be replevied ; and the reason is, that the law will not be so inconsistent with itself, as to be auxiliary or lend its aid to an act which would operate to defeat its own purposes. But the court were called upon to instruct the jury, that if they found that the writ of replevin which issued in this case, was executed before the service of the first replevin upon the same property, and while it was in the custody of the sheriffj then the plaintiff was not entitled to recover. There being evidence in the cause to go to the jury, to prove a waiver on the part of the plaintiffs in the original replevin, of the delivery of possession to them, under their writ against the defendants in that action, the court would have erred in giving a positive instruction to the jury,. in the manner required by the defendants’ first prayer.'
We think that the court below did not err in refusing to grant the defendants’ second prayer to the extent to which they were asked to instruct the jury; that is to say, that the plain*275tiffs could not recover at all in that suit, upon the state of facts assumed by the prayer, and upon which it was predicated.
Without deciding whether two defendants can be sued jointly in one action of replevin, for several parcels of property, severally owned and separately taken and detained, we think that such a misjoinder (if it be one) would not have warranted the instruction asked from the court, because such an objection is not altogether fatal to the action; but the defect may be cured by putting the party to his election, as was done in 2 Johns. Rep. 228. And we find also, that a misjoinder of counts in a declaration, may not only be cured by an exercise of the right of election, but also by the verdict of the jury finding for a plaintiff on one count, and for the defendant on the other; as where an action is brought against a defendant in his personal, and also in his representative capacity, which would be a misjoinder of counts; the defect may be cured by verdict. Gould Plea. 217.
The court, we think, were also right in rejecting the defendants’ third, prayer, because there being evidence in the cause of usage to deliver the flour when sold for cash, without demanding the cash at the time of delivery, the instruction asked for by the defendants’ prayer, that no property passed on the delivery unless the cash was paid or tendered at that time, was properly rejected by the court, as such an instruction would have withdrawn from the jury the consideration of such usage, and the effect of it upon the contract in this case, as to the necessity of making such payment simultaneously with the delivery of the flour purchased.
We do not think that the court erred in refusing the fourth prayer of the defendants, relative to the insolvency of Tyson & Norris, at the time they made the purchases of the flour and corn in this case. The prayer seems to have been founded on the idea, that the sale was fraudulent if the vendees knew themselves to be insolvent at the time of the purchase, and did not communicate that circumstance to the vendors; knowing at the time that they were ignorant of the fact, and had not the means of becoming acquainted with it. The law, it *276seems, does not sanction such an elevated tone of morality in mercantile dealings, as would have warranted the granting of the prayer, to the extent asked for by the defendants in this case. Such a strict and rigid doctrine, considering the vicissitudes and changes incident to mercantile life, would go far to cramp the operations of trade and commerce, and has not received the countenance of the courts of justice, either in this state or elsewhere, as far as we have been able to ascertain. Moreover, the proceeds of sales of the property purchased, might have enabled them to fulfil their contract, and from any thing which appears might have been intended to be applied to that purpose.
Nor do we think that the court erred in refusing to grant the fifth prayer of the defendants. By the terms of the bill of lading, the property was to be delivered to Josiah Bradlee & Co. or to their assigns, he or they paying freight for the same. This we think vested the legal title in them, and enabled.them to ' maintain the present suit. “ If goods by a bill of lading are consigned to A, he is the owner, and must bring the action ■if they are lost; but if the bill be special to be delivered to A, for the .use of B, B ought to bring the action.” 2 Liver, on Agen. 117, and the cases there cited. In 6 Serg. and Raw. Tilghman, Ch. J. says, “ in deciding on the legal property, the court will look to the face of the bill of lading; but in ascertaining the equitable owner,, the invoices, letters of advice, and other collateral evidence, will be resorted to.”
For reasons already given, we think the court did not err in refusing to grant the defendants’ sixth prayer, to the full extent to which they were asked to go in their instruction to the jury. ,
We think the court were right in refusing to grant the defendants’ seventh prayer, because there was evidence to go to the jury, from which they might have found a waiver of actual delivery by the plaintiffs in the original replevin, and the granting of the instruction by the court, might have tended to mislead the jury as to their right to make such deduction.
W.e think the court were also right in refusing the defen*277dants’ eighth prayer, because there was evidence to go to the jury, from which they might have found a waiver of the delivery of the corn before the service of the writ of replevin issued in this case.
We think the court below were also right in refusing the defendants’ ninth prayer, for the reasons we have already assigned in a preceding part of this opinion. The misjoinder of the causes of action, if it was one, did not go totally to defeat the action, and therefore did not warrant the prayer to the full extent in which it was made.
For the same reason, we think the court below committed no error in refusing to grant the defendants’ tenth prayer.
After refusing the defendants’ prayers, the court delivered several instructions to the jury, the accuracy of which is brought before this court for revision, and which will now be considered and decided upon.
We fully concur with the court below in their first instruction to the jury. Although the sale of the goods was for cash, yet it was competent for the vendors to waive the cash payment by an unconditional delivery of the goods, without a concurrent demand of the money at the time the delivery was made. They had a clear right to dispense with the cash payment, and it was unquestionably waived by an unconditional delivery, unaffected by any fraud on the part of the purchaser in obtaining it. In such a case, the condition of payment simultaneously to be made according to the contract, would be waived, and the right of property would pass.
We can perceive in the second instruction of the court to the jury no error, except that they have withdrawn from the jury the decision of the question of fraud in the purchase of the property. This was no doubt inadvertently done, as their attention was very properly drawn to the consideration and decision of that faet in the previous instruction.
It does not appear that the court have committed any error in their third instruction to the jury. The court rightly left it to the jury to find the fact of usage, and to decide whether the vendors of the articles acted in reference to it at the time *278of the delivery, so as to prevent the delivery, if made unconditionally, from operating as a waiver of the cash payment. If the delivery was unconditional, and without reference to the usage, the title passed. If it was made with reference to the usage, which was a question of intention, then the title did not pass, if the cash was not paid when thereafter demanded.
In making the delivery, it was unquestionably competent for the vendors to waive the saving operation of the usage upon their rights; and to transfer the title by an unconditional delivery if they thought proper to do so.
We concur with the court below in their fourth instruction to the jury, as to the invalidity of the contract upon the ground of fraud, upon the hypothesis that the jury should find the facts therein stated, to be true; but we think they erred, in telling the jury that the plaintiffs would, nevertheless, acquire a good title by the bill of lading, if they became creditors subsequent to the delivery of the goods to Tyson & Norris, (of which fact there was not a particle of proof,) and without adding that they became such creditors, bona fide, upon the faith of the consignment and shipment of those very goods. Upon no other grounds could they acquire a right, when none passed to the persons under whom they claimed. In such a case, good faith, and a valuable consideration, would be essential constituents of a good title in any person claiming under them.
We think the court erred in the fifth instruction given by them to the jury, in directing the jury, that before they could find the sale of said goods fraudulent and void, they must find that Tyson Sf Norris knew that they were not able to pay for the goods, and that they would not be able to pay for them, and neither intended nor expected to pay for them. The jury could not well find that Tyson & Norris knew that they would not be able to pay; it was sufficient for the jury to find, in that respect, that they knew themselves to be insolvent, and had no reasonable expectation of paying for the goods purchased. The necessary tendency of such an in*279struction was calculated to bewilder, embarrass, and mislead the jury in their deliberations, and was therefore erroneous. In 21 Serg. and Low. 477, the above principle seems to be decided. In that case, a vendee, under terms to pay for goods on delivery, obtained possession of them by giving a check which was afterwards dishonoured, and the court held, that he gained no property in the goods, if at the time of giving the check, he had no reasonable ground to expect that it would be paid. The transaction would be fraudulent, and the property would not pass.
.For the reasons already given, we think the court below were right in their sixth instruction to the jury.
We think the court below erred in their seventh instruction to the jury, by requiring them, before they found against the plaintiffs, to find that the plaintiffs never made to Tyson & Norris any advances, nor contracted for them any responsibilities upon the faith of said consignment, when there was no evidence in the cause upon which the jury could find such a fact. Such an instruction was erroneous, as tending to mislead the jury in the formation of their verdict.
For similar reasons, we think the court erred in their eighth instruction to the jury, by requiring them to find that certain facts did not exist, of which there was no evidence, before they could find a verdict against the plaintiffs, and that they had no right to recover. Such instruction was calculated to mislead the jury, and was therefore erroneous. There was no evidence in the cause of any advances made, or responsibilities incurred by the plaintiffs for Tyson & Norris on account of said corn or flour.
We can perceive no error in the ninth instruction. If the goods were sold on credit, and not for cash, and were delivered to the purchasers in the absence of fraud, there can be no doubt that the property passed from the vendors to the vendees, and the plaintiffs would be entitled to recover.
The tenth instruction we think was also correct. It was no doubt competent for the Boggs, one of the defendants, to make the agreement, dispensing with the actual delivery of *280the goods for which the writ of replevin issued', so as to legalize the execution of the process of replevin, then in the hands of the sheriff, and which he was about to execute for the plaintiffs in this. suit. If he did make such an agreement for that purpose,, he would he precluded by it from raising the objection, that the goods were in the custody of the law, on the ground that such an objection, thereafter, would he fraudulent, and a violation of fair dealing and good faith.
We cannot, however, concur with the court below, in their eleventh instruction, which does not stand upon grounds equally tenable with those contained in the next preceding instruction. There was no agreement to be found by the jury, dispensing with the delivery of the corn, for the- purpose of enabling the officer, to execute the writ of replevin then in his hands,, previously to the execution of that writ; and the objection, that the goods were in the custody of the law when the writ of replevin was executed, might well have been made, without any violation of good faith, even if the hypothetical statement of facts contained in the court’s instruction had been found by the jury to have existed. The subsequent ratification of the act of the officer in making the replevin, if found by the jury, would have been purely voluntary, and being founded upon no valid consideration, was not obligatory upon the defendants.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.