substitution for a general verdict, can be taken away by a legislative provision, that the finding shall in all cases state the facts separately and distinctly.

There are many cases in which this duty would be burdensome and most vexatious, and the reasons are many and weighty why it should not be put compulsorily on the court in all cases.

It is not my intention, however, at present, to do more than indicate my doubt upon this subject, and to expressly exclude any inference of acquiescence in the binding force of all the requirements of the act of 1874. In the case before me, I think the final determination can be most satisfactorily reached by a special finding of the facts, which I therefore proceed now to make. Fortunately, the candor with which both parties testified to their transactions, removes all serious difficulty from this task.

FACTS FOUND.

I. I find the following facts from the evidence given in the cause: On September 17, 1873, the plaintiffs, Colket & Tevis, borrowed of defendants, R. Ellis & Co., $16,000, on call, and deposited as collateral security therefor 500 shares of the stock of the Lehigh Coal and Navigation Company. A loan on call is understood to be one in which payment may be demanded on any day by notice before 10 o'clock A. M. In addition to this understanding from the general nature of the loan, there was, in this case, an express agreement that this loan should be repaid on the following day, September 18.

On September 18, defendants called the loan in the regular way, according to the custom. On this morning the failure of Jay Cooke & Co. was announced; a panic ensued in the stock market, and plaintiffs were unable to pay the loan. Several interviews took place between Tevis, one of plaintiffs, and Ellis, one of defendants, the last of which, about 24 o'clock, resulted in the pledge by plaintiffs of an additional 100 shares of Lehigh stock as collateral, and an agreement by defendants to carry the loan till the next day.

It was the distinct understanding of both parties that the carrying of the loan for this single day was a matter of great difficulty in the condition of the market, and that the loan must be paid the next morning, or the stock must be sold.

September 19. Frequent interviews took place between Tevis and Ellis relative to the payment of the loan: the final one, about 2 o'clock, took place at the head of the stairs in the exchange, outside the room of the board of brokers. Tevis finally informed Ellis that he was not able to pay the loan, and he (Ellis) "must protect himself." Ellis said, then he must sell the stock; that he had a customer in his office for three hundred shares at twenty. Tevis assented to that sale, and Ellis then said, "I have sold three hundred at twenty on your account, and I'll go into the board and sell the rest;" and went into the board-room. Tevis, in his testimony, says, "I made no objection whatever to this remark." Ellis then went into the board of brokers, and sold the remaining three hundred shares, at twenty. On the same day he notified the plaintiffs of these sales in writing, in the following terms:

"DEAR SIRS: We have sold for your account and risk, 300 Lehigh at 20 cash, to W. J. Sylvester; 100 do. do. to Gaw, Bacon & Co.; 100 do. do. to C. G. Phillips; 100 do. do. to W. H. Stevenson. "Yours respectfully,

"On account loan of $16,000."

"R. ELLIS & Co.

I find that the foregoing sales were made in good faith, at the market price of the stock on that day, and the stock delivered to the purchasers. That it was the understanding of the parties at 2 o'clock, on the 18th, that the stock would be sold if the loan was not paid on the 19th; and that distinct notice was given to Tevis as early as 11 o'clock, on the 19th, that the sale would certainly be made that day, unless the loan was paid; that the interviews between Ellis and Tevis, on the 19th, were based on that understanding, and that at the final one, about 2 o'clock, Tevis, having exhausted his efforts to meet the call, acquiesced in the sales of the stock at the time, and in the manner they were made.

I find, further, that there is an established general usage among brokers, when a call loan is not paid on the day it is demanded, to sell out the collateral securities at the board of brokers, without further notice to the borrower; that both parties in this case were members of the board of brokers, both familiar with this usage, and both acted throughout the transaction on the basis of its validity, and its controlling effect upon their respective rights.

October 3, 1873. Defendants rendered an account, with the following

letter:

"MESSRS. COLKET & TEVIS:

"GENTLEMEN:- -We enclose a statement of balance due us by your firm. We have waited, we think, a long time for a check from you for the amount, and must ask your immediate attention to the matter.

"Very respectfully,

"R. ELLIS & Co."

The account enclosed showed the loan of $16,000, a credit of six hundred shares of Lehigh Navigation, at twenty, $12,000, leaving a balance of $4,000 due to defendants.

October 4. To this letter the plaintiffs made the following reply:

"MESSRS. R. ELLIS & Co.:

"October 4, 1873.

"GENTLEMEN:-Your favor of the 3d duly received. We are not in position at present to give check for amount of your claim. As soon as we are able to get our matters settled up we will communicate with you. Very respectfully,

"COLKET & TEVIS."

In December, 1873, defendants brought suit against plaintiffs for the unpaid balance on above account.

February 2, 1874, plaintiffs made a tender to defendants of $16,613.33, and demanded a return of the six hundred shares of stock, which was refused, and thereupon plaintiffs brought this action of trover.

The market price of Lehigh Coal and Navigation Company's stock on the day of the loan, September 17, 1873, was from 341 to 351, according to the terms; on the 18th there was a sale at 344; on the 19th, the day defendants sold, the price was from 20 to 23, according to terms; on September 27, it was 20, having been up to 234, as the highest price between the 19th and 27th; on February 2, 1874, the day of the tender, it was 43; and the highest price between September 19, 1873, and the day of the trial was 517.

There have been since September 17, 1873, dividends declared on the stock amounting to four dollars per share.

II. Upon the foregoing facts, I reach the conclusion that the sale of the stock by the defendants was not a legal injury to plaintiffs so as to support this action, because

First. It was authorized by the usage or custom of brokers, known to both parties, and with reference to which they conducted their transactions.

It was strenuously argued by plaintiffs' counsel that this was not a valid usage, as it was in contravention of the rule of law which requires a sale of collaterals to be public, and to be made after due notice. Several cases were cited to show that a custom cannot be allowed to contravene a positive rule of law: Henry vs. Risk, 1 Dall. 265; Stoever vs. Whitman, 6 Binn. 417; Evans vs. Myers, 1 C. 114; and Hursh vs. North, 4 Wr. 241. In the first of these, the question was, whether interest could be charged upon the items of an account for goods sold and delivered, and the Supreme Court held that it could not, and that a custom of the trade in Philadelphia, to charge it, was not admissible. The scope of this decision is sufficiently indicated by the opening sentence of the opinion of the court: . . . "Shall interest be allowed upon the account. . without any notice to the defendants that interest would be charged, or any agreement on their part to pay it?" But the same custom which was there declared inadmissible has since become so universal and well established, that it is now part of the settled law of the State: Koons vs. Miller, 3 W. & S. 271; Adams vs. Palmer, 6 C. 346.

Of the other cases cited by plaintiffs, Stoever vs. Whitman, was an attempt to settle the construction of a ground-rent deed by a custom in a single town, and of the evidence proposed Chief Justice Tilghman says, it "hardly deserved the name of a custom." (p. 420.) Evans vs. Mjers, was an attempt to control a statute by a custom, and in Hursh vs. North, the evidence was to the usage of a particular firm, and Judge Thomson concedes that if it had been of a general custom, it "would have been the law of the contract and both parties would have been bound by it.” There are few rules of law more stringent and unbending than those which govern the liability of common carriers, yet a usage known to the other party, or so universal that he must be presumed to know it, will control and limit that liability: McMasters vs. Penna. R. R. Co., 19 Sm. 374.

Without further reference to the numerous cases on this subject, I

think their effect may be summed up to be, that where no statute or principle of public policy intervenes, but a rule of law is a mere privilege which may be waived, there is no reason why the waiver may not be as well by a custom known to and acquiesced in by the parties, as by an express contract. Without intimating what would be the effect if such a usage as the present were set up against an outside party, I am of opinion that as between plaintiffs and defendants, both members of the board of brokers, familiar with and dealing on the basis of it, it is a valid and lawful custom and controls the rights of these parties.

Second. Independent of the custom, however, I am of opinion that the assent or acquiescence of Tevis in the sales of the stocks at the time and immediately before, is a sufficient defence to this action. Volenti non fit injuria.

Third. The letter of October 4, from plaintiffs to defendants, in reply to the latter's presentation of the account of the sales, showing a balance of $4,000 due from plaintiffs to defendants, was an express ratification of the sales. This and the preceding ground do not seem to require further elaboration.

Fourth. Even if the letter of October 4 did not amount to an express ratification, the plaintiffs are nevertheless estopped, by their silence, from now disputing the sales. An account rendered becomes an account stated, if not objected to in a reasonable time: Bevan vs. Cullen, 7 Barr, 281; Porter vs. Patterson, 3 H. 229. What is a reasonable time must depend on the circumstances of each case. In this case all the circumstances require that time be counted rapidly. Property of most kinds varies in value but little from week to week, but stocks are sensitive to every breath that blows; not unfrequently they fluctuate from day to day, and in times of financial panic the steps in their decline are to be counted by hours if not by minutes. Plaintiffs received an account of sales on the afternoon of September 19. On October 3, they received another account, showing the balance due by them of $4,000. In the month of December—the exact day not being in evidence-defendants commenced a suit for this balance, and not until an affidavit of defence was filed by the present plaintiffs in that suit, on January 23, 1874, did defendants receive notice of any objection to the sales.

In the meantime, the Lehigh Navigation stock had gradually risen, until when the tender and demand was made by plaintiffs, February 2, 1874, it had reached 43. Had plaintiffs promptly objected to the account, and expressed an intention to hold defendants liable for the conversion, the latter might, on the 27th of September, have bought back the stock at the same price at which they had sold it, and avoided this present controversy. How much longer the stock remained at or about this price, the evidence does not show, but this is sufficient to demonstrate the importance of time in the question of ratification. Probably no safer way of speculating at another's risk could be invented than to make default, and induce a sale of collaterals on a depressed market, lie quietly by till the wave had passed, and prices were up again, and then tender the amount of the debt with legal interest. I desire to say, most explicitly, that no such design is to be attributed to plaintiffs here, but the possibility of such a thing is enough to show its utter repugnance to every principle of justice and law. Under the circum

stances of this case, the delay of four months in objecting to the sale was so unreasonable, and the condition of defendants had in that time altered so materially, that it would be contrary to common honesty to allow the plaintiffs now to hold the defendants accountable for a loss, which was caused in the first instance by their own inability to perform their contract.

For these reasons, any one of which I deem sufficient, the decision is entered for defendants.

William C. Hannis, Esq., for plaintiffs.
Charles Henry Jones, Esq., for defendants.

In re APPLICATION FOR THE INCORPORATION OF "THE ENTERPRISE MUTUAL BENEFICIAL ASSOCIATION.”

1. It must appear by petition or affidavit that at least three signers of articles of incorporation are citizens of Pennsylvania.

2. The articles must show the place where the business is to be transacted; the location of its office is not sufficient.

3. Notices of application for charter must be published in the Legal Intelligencer and two general newspapers.

4. Such notice should specify particularly the time and place of such intended appli

cation.

Opinion delivered February 20, 1875, by

LUDLOW, P. J.-Articles of incorporation of the first class were presented to one of the judges of this court under the act of assembly of 29th April, 1874, for approval. We are obliged for the present to withhold our indorsement for the following reasons:

1. It does not appear, that of the five persons who have subscribed, three are citizens of this Commonwealth. The act of assembly (sec. 3) is imperative, and the fact should appear by petition for the intended charter, or by an affidavit added to it. How, in the instance before us, can we know that the persons subscribing are not citizens of another State or foreigners?

2. In the paper before us, Article III. reads thus: "The place where its office is to be located is in the city of Philadelphia."

The act of assembly requires "the place or places where its business is to be transacted," to be designated. The intended charter is defective, in that it specifies no place" of business within the meaning of the act. An office may be located in one city, and the real "place of business" be in another Commonwealth. We must be satisfied upon this point that the act of assembly has been substantially followed before we indorse and approve any charter.

may

3. The act of assembly requires notice of an application for a charter to be published in "two newspapers of general circulation." The notice