#### The State Bank of South Carolina *vs.*Hermann Cox & Co. and others.

*Principal and Agent*— Power *of Attorney*— Bank Stock— *Sale.*

S. being the owner of certain shares in the stock of the State Bank, which, by the usage of the bank, could be transferred only by entry in the books of the bank, delivered her certificate of stock to her attorney Bv with a blank power of attorney, authorizing a sale of the stock. B. borrowed money for his own use from C., and to secure the payment transferred to him the certificate and power oí attorney: *Held\*that the transfer to C., who acted *bonaJide,*and without notice oí S.’s title, was valid.

BEFORE DARGAN, OR, AT CHARLESTON, FEBRUARY, 1853.

This case will be understood from the circuit decree.

Dargan, Ch. Madame Leopoldine Szemere, née Turko-vics, a Hungarian lady, residing in Paris, wife of Barthelemy Szemere, became the owner, by purchase, of fifty shares in the State Bank of South Carolina, in Charleston; which shares were transferred upon the books of the bank, according to the custom of that institution. Afterwards, the bank issued a new certificate of stock to her for the fifty shares, iu the following form :

“South Carolina,-No. 5,600.

“ This certifies that Madame Leopoldine Szemere, née de Turkovics, Paris, is entitled to fifty shares in the State Bank, transferable only at the bank, by the said Madame Leo-poldine Szemere, née de Turkovics, personally, or by her attorney.

“ Witness the seal of the Company, and the signature of the President, at Charleston, this tenth day of July, 1852.

(Signed) EDWARD SEBRING.”

*345Upon this stock, Madame Szemere, by attorney, received the dividends to the 18th January, 1856.

One John Boldin, a merchant in Paris, dealing in cotton, was Madame’s agent, in that city. The said certificate of stock, with a power of attorney, were delivered by Madame Szemere to said Boldin, for the purpose, as she says, of being transferred by him to one H. W. Kuhtmann, of Charleston, to enable him to receive the dividends for her. Kuhtmann *was*her agent in Charleston, and did receive the dividends from 1852 to 1855, inclusive. It does not appear that Kuht-mann was ever in possession of’the certificate of stock, or of the power of attorney, delivered to Boldin ; though Kuht-mann acted under another power to him by name, bearing date 6th April, 1852. The power of attorney delivered to Boldin, is in words as follows:

“Know all men by these presents, that I, Leopoldine Sze-mere, née de Turkovics, do hereby make, ordain, constitute and appoint for true and lawful attorn for and in name, to transfer one certificate, No. 5,600, dated 10th July, 1S52, of the South Carolina State Bank, for fifty shares inscribed in my name on the books of said bank; and to make and execute all necessary acts of assignment and transfer thereof, with power to the said attorn to substitute an attorney, or attornies, under for all or any of the purposes aforesaid, and to do all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that the said attorney, or substitute, shall do therein by virtue of these presents.

“ In witness whereof have hereunto set hand and seal the eleventh day of November, in the year of our Lord one thousand eight hundred and fifty-two.

“Signed, sealed and delivered in the presence of us,

(Signed) Leopoldine Szemere,'née de Turkovics,

“Approved, Barthelemx Szemere,” [l.s.]

*346Indorsed upon the power of attorney, is the following certificate :

“Be it known, that on the eleventh day of November, one thousand eight hundred and fifty-two, before me, S. G. Goodrich, consul of the United States of America, at Paris, personally appeared Leopoldine Szemere, née Turkovics, known to me to be the constituent named in the foregoing letter of attorney, and acknowleged the said letter of attorney to be her free act and deed. In testimony whereof, I have hereunto set my hand seal.

(Signed) S. G. GOODRICH, U. S. Consul.”

The said Boldin being in possession of the said certificate of stock, and the power of attorney of the ] Ith November, 1852, opened a negotiation with Hermann Cox & Company, commission merchants in the City of London, in which, claiming to be the owner of the stock, he proposed to them to make him certain advances of money, upon the pledge or hypothecation of the stock. Having agreed to his proposals, Boldin forwarded to the said Hermann Cox & Company, the certificate of stock and the said power of attorney; whereupon they accepted his three several drafts at three months, for £400, £240, and £169 10s. By their agent in Charleston, they have sold the said bank shares, and the proceeds have come into their hands. From the allegations of Madame Szemere’s answer, it appears that Boldin has committed a breach of trust, and has not accounted to her for the proceeds of the sale of the stock; and has become a bankrupt, with a total loss of character. Under these circumstances, there are two adverse claimants of the ownership of the stock: Hermann Cox & Company, by virtue of their purchase from Boldin, and Madame Szemere, on *the ground*that Boldin was without authority to sell, and that the sale by him to Hermann Cox & Company was, on various grounds, null and void, as against her. The bank, not knowing with which party to deal as the true owner, has *347interpleaded them by this bill, and called them into this Court, with the view of having their rights adjudicated. To the bill, each party has filed au answer, setting forth the grounds of her and their claims. In a bill of interpleader, the answer of a defendant cannot be evidence in his favor, against the other defendant, with whom he has been inter-pleaded. As to evidence, therefore, the case must be tried on the undisputed, or authentic facts of the case, as they have been developed in the progress of the cause.

The defendants, the Szetneres, do not deny the delivery by them to Boldin, of the power of attorney, with the original certificate of stock, but they deny that this was done for the purpose of clothing him with the power to sell the stock, and aver that it was, “ upon the special trust and confidence, and with the express authority and instruction that they (the certificate and power) should be transmitted by the said Boldin to a certain EL W. Kuhtmann,in Charleston, South Carolina, for the purpose of collecting the dividends on the said shares.” Elere is, indeed, a seeming inconsistency. Kuht-mann had already a formal power of attorney of 6th April, 1852, to him by name, (and not in blank as to the name, as was the case in that of the 11th Nov., 1852,) under which he (Kuhtmann) had received the dividends due on the 2d July, 1852. For what end could another power be given ? Or why send the certificate of stock, when the power which he already had, was sufficient to enable him to receive the dividends ?

In the argument at the trial, there was much discussion on the question, whether certificates of bank stock were transferable by delivery. Much can be said in favor of such a rule, founded upon the convenience and customs of commerce. I incline to think that the preponderance of authority, as well as reason, is in favor of the affirmative of the proposition. In this particular certificate of stock, (as all others that are issued by this bank,) there is a condition expressed, that it was *“*transferable only at the bank.” The. *348charter of the State Bank, 8 Stat., 10, contained no provision for the transfer of stock, but in sec. 17, declared that “ the stock of the bank shall be assignable and transferable according to such regulations as may be instituted in that behalf by the directors.” The president, (Mr. Edward Sebring,) who was examined as a witness, said, that so far as he knows, there is no rule, regulation, or by-law on the records or journal of the bank, by which the form or manner of transferring stock is governed ; but from the time he has been connected with the institution, the form of language in which this certificate is couched has been used, and that they keep a transfer book, in which all transfers and assignments of stock are made by the parties themselves, or their attornies. But I apprehend that regulations of this kind, even when they are introduced into the bank charters, are intended for the convenience, protection and security of the banks themselves. It is to give the bank notice and information as to who are the stockholders. If the purchaser of a certificate of stock with such a provision upon its face, should not have it transferred or assigned to him at the bank, and upon the books of the bank, according to the regulation, he could not complain, if the bank should regard the original stockholder as the true owner, pay the dividends to him, and otherwise deal with him as still the owner. But as between other contracting parties, the rule is, must be, different. And I think I may say, without the fear of contradiction, that the transfer of stock by the owner, though not in accordance with the form prescribed by the charter, or the by-laws, will pass all the right of the shareholder, in equity, if not in law. Bank stock is property, and there is, and can be (reasonably) no inhibition in the general law of the land against its transfer, as other incorporeal chattels are transferred. The condition, then, in the certificate, that it was transferable only at the bank, &c., I do not think can affect, much less conclude this question. Upon the question, whether certificates pf bank stock are transferable by delivery simply, I incline to think, as I have *349intimated, that the preponderance of authority and argument is with the affirmative. But I do not affect to have arrived at a clear and assured conclusion as to this point, and do not wish to predicate judgment on this principle. I wish to rest it upon other grounds, upon which I can rely with greater confidence.

Madame Szernere admits in her answer, that she delivered the power of attorney and the original certificate of stock to Boldin; not, as she says, for the purpose of authorizing him to sell the stock, or to do any act in relation to the same, except simply to transmit the power and the certificate to H. W. Kuhtmann, in Charleston, South Carolina, to enable him to collect the dividends for her. I have already commented upon the absurdity of this statement, by referring to the fact, that she had already, on the 6th April, 1852, executed and delivered to Kuhtmann, a power to receive the dividends ; under which he had, at the time of the execution of the power to Boldin, received one installment of dividends. Whatever may have been the motive for the delivery of the certificate of stock and the power of attorney to Boldin, she invested him thereby, with all the indicia of property and ownership as to said shares of stock, and if he abused her confidence, she must bear the consequences. From the fact that she received the dividends up to January, 1856, it is, I think, fairly to be inferred that Madame Szemere continued to be the owner of the stock, notwithstanding the delivery of the certificate and power to Boldin. But for this fact;; and the inference from it, her continued ownership would not be proved, except by her own statement, and it would not appear but that Boldin was the assignee, as the transaction with- him would import. I shall assume in all that I have to say in this judgment, that Madame Szemere continued to be the true owner of the stock, and that Boldin committed a fraud iu disposing of the same as his own property.

Kuhtmann, her agent in Charleston, already having a formal and sufficient power, under which he was successfully acting *350in the collection of the dividends, I can conceive of no motive for the delivery of the certificate and the. power to Boldin, except it was to enable him, at his own discretion, to effect a sale for her benefit. But the motive is'immaterial. She held him out to the world as the proprietor. The evidence is plenary that, according to commercial usage, this possession of the certificate and a power of attorney in this form, imported ownership. Hermann Cox & Company could not know the secret trusts and equities that subsisted between Madame Szemere and Boldin. She armed him with the legal title *to go*forth and sell the stock for her; he went forth and sold for his own benefit, and put the proceeds in his own pocket. There is no doctrine of equity jurisprudence better supported by reason, as well .as authority, than this: that where one or two innocent persons must suffer loss, it must fall on the party who, by incautious and misplaced confidence, has occasioned it, or placed it in the power of a third party to perpetrate the fraud by which the loss has happened.

But let us look at the transaction in another light. Suppose that the possession by Boldin of the original certificate, and a power of attorney in this form, did not imply an ownership by him of the stock ? What then ? He was then her authorized agent to sell the stock. It is vain for Madame Szemere to say, that he was not to sell under the power, but to transmit it to Kuhtmann. If that be true, it was a secret arrangement between them, and not binding upon third parties. It is equally vain to say, that the language of the power conveys no authority to sell. In the plainest language it invested him with the power *“*to trausfer” “ the fifty shares of stock, and to make and execute all necessary acts of assignment and transfer thereof,” &c. She clothed him witli the power to sell; whether wisely or not, is immaterial. In pursuance of the power, he did sell. The breach of trust did not consist in the act of selling, but in not accounting. Whether Madame Szemere had a good title to the shares of *351stock, and Boldin a valid power to convey her title, it concerned the purchaser to know. But whether Boldin accounted for the proceeds to his principal, was no concern of the purchaser. It has not been made to appear, except by Mr. and Mrs. Szemere’s own statement, that Boldin has embezzled or misappropriated the proceeds of the sale. But, admitting that he has, and, admitting further, that, by a parol reservation, he was not to sell under the power, it was Madame Szemere who put it into his power to commit the fraud. (See 1 Doug., 529 ; *Code Nap., lex loci.*Story Conflict. Laws, 384.) There was nothing of a suspicious nature in the transaction, (according to the evidence,) except the lapse of time, from the execution of the power, and the offer to sell to Hermann Cox & Company. This, and nothing else, (the witnesses, persons dealing in stocks, said,) was calculated to awaken suspicion. But, considering Boldin as the owner, I cannot see how that circumstance was calculated to excite suspicion. If it was considered as Boldin’s stock, the possession of the certificate, and the power, constituted the evidence of his title. Considering him as a mere agent to sell, there was no limitation in his power, either as to time, price, or any other terms. It was as good a power then as it was when first executed. It only behooved the purchaser to inquire if the principal was still living, and the power not being limited as to time, and remaining unrevoked, its efficacy remained unimpaired.

It was argued that Madame Szemere was a resident of France, and that as personal property had no locality, and was attendant upon the person, the transfer should have been made according to the law of the domicil. Two French advocates, living in Paris, were examined by commission as to what form was required by the French law for the transfer of such property, or rather their opinion was sought as to the manner in which this particular case should be decided. The case was submitted to them for their opinion, which was very frankly and decidedly given in favor of *352Madame Szemere. Such an opinion, or judgment, of course, cannot be decisive here. But when a general or abstract principle of foreign law has, or is supposed to have, a bearing upon a judicial question pending in our courts, it is competent, in this way, to seek information as to such principle of foreign jurisprudence. In this point of view, a portion of these depositions is competent evidence. It was shown by these advocates, in their depositions, that this transfer by Madame Szemere, in the form and manner in which it was made, would be invalid, and ineffectual to transfer the stock, under the provisions of the *Code Napoleon.*

The fallacy of this argument consists in the assumption that the assignment, though not good under the Code Napoleon, would not be good if made according to the *lex loci sitae.*The general rule, that the laws of the owner’s domicil should, in all cases, determine the validity of every transfer of personal property made by the owner, is subject to some exceptions. One exception is, where the *lex loci sitae*prescribes some particular form of assignment or transfer; another exception is, where, from the nature of the particular property,it has a necessarily implied locality. “In *Robinson vs. Bland, 2*Bur., 1079, Lord Mansfield has mentioned, as among the latter class, contracts respecting the public funds or stocks, the local nature of which requires them to be carried into execution according to the local law.” And Justice Story, in commenting upon the rule, (De Con-flicto Legum, ch. 19, sec. 363, 383,) says: “ the same rule may properly apply to all other stocks or funds, although of a personal nature or so made by local law ; such as bank or insurance stock, turnpike, canal and bridge shares, and other incorporeal property, owing its existence to, or regulated by peculiar local laws.”

Subject to exceptions like these, says this eminent commentator, ib., sec. 384, “the general rule is, that a transfer of personal property, good by the law of the owner’s domicil, is valid wherever it may be situate. But it does not follow *353that a transfer made by the owner, according to the law of the place of its actual situs, would not as completely divest his title; nor even that a transfer by him in a foreign country, which would be good according to the law of that country, would not be equally effectual, though he might not have his domicil there. For purposes of this sort, his personal property may, in many cases, be deemed subject to his disposal wherever he may be at the time of the alienation.”

Nothing can be plainer and more directly to the point. If Jndg.e Story is good authority, this settles the question arising on this part of the argument.

The equity of Hermann Cox & Company, however, extends only to the amount of their actual advances of money. It is only upon the ground of their paying valuable consideration for the stock in ignorance of Madame Szemere’s claim, and upon Boldin’s apparent title, and authority to sell, that their equity becomes paramount to hers. Otherwise, hers would have prevailed. If they had had notice before they paid their money, they would not have been entitled to the protection of this Court. It follows, that they are entitled to be reimbursed from the said stock, the sums which they advanced thereon, and the accruing interest.

The opinion and judgment of this Court is, that the fifty shares of the stock of the State Bank of South Carolina, ir'^infimed in the bill, standing in the name of Madame Lcopoldine *nie*Turkovics, is to be, and is considered, the property of LLrmann Cox & Company, to the extent of the consideration paid by them for the same.

It is, therefore, ordered and decreed, that one of the masters take an account of the sums of money advanced by the said Hermann Cox & Company, to the said John Boldin, from the date or dates of such advancements, to the time of the sale hereinafter ordered.

It is further ordered and decreed, that one of the masters of this Court, on some convenient day, to be fixed by him, after duly advertising the same, do sell the said fifty shares *354of bank stock at public auction for cash; and that from the proceeds of said sale, he pay to Hermann Cox & Company the aggregate sum of the money paid by them for said stock, with interest thereon, as herein directed to be calculated, and that out of the overplus, if any, he pay the costs of these proceedings.

.It is further ordered and decreed, that the defendants, Bar-ihelerfiy Szemere and Leopoldine Szemere, pay the costs of this suit, out of the proceeds of the sale of the stock as above directed, if the proceeds of that sale be sufficient for that purpose, after satisfying the claim of Hermann Cox & Company, and if not, that they be liable for said costs generally.

The defendants Szemere and wife appealed on the grounds:

1. That no right of property is vested in a vendee, even by a *bona ñde*sale made to him for valuable consideration by a person having possession of chattels personal, without property ¡or authority to sell, and that such naked possession does mot authorize the application of the principle, that wheu one of two innocent persons must suffer loss, it must fall on him who has placed it in the power of a third person to perpetrate a fraud.

2. That a certificate of bank stock is not a negotiable instrument ; nor does the legal title in the stock pass by a delivery of the certificate; and that the delivery and custody of the .certificate passes no equitable interest, unless done with that intent.

.3. That by the rules of the State Bank, the shares in that institution are transferable only at the bank, personally or by attorney.

4, That Boldin had neither property in the shares, nor authority to sell. Or, if it be supposed that there was any authority to sell, his transactions with Messrs. Cox & Co. .were by way of hypothecation or pledge; and that an agent or factor,vwith authority to sell, has no authority to pledge or transfer the goods of,his principal to secure his own debt.

*3555. That the power of attorney from Mons. and Madame Szemere was a naked power to John Boldin, not coupled with any interest, and as such was revocable at any moment before action under it, and that it was so revoked.

6. That the blanks in the said power cannot be filled up, without authority from Monsieur and Madame Szemere, expressed or implied.

7. That the lapse of time since the execution of the power, and all the circumstances attending its transfer from Boldin to Messrs. Cox & Co., were sufficient to excite their suspicion, and caution them of his want of authority and property.

8. That the question involved is not one of fraudulent dealing by an agent, within the apparent limits of his power, but one of an agent exceeding his power.

9. That although the mode of transferring a title to stock should be referred to the regulation of the bank, or the *lex loci rei sitas,*the acquisition of any equitable interest, under a special contract, may be governed by the law of the domicil of the contracting party.

Pringle, for appellants.

Messrs. Cox & Co. stand only in Boldin’s shoes; their title is his.

There is no evidence that any consideration was paid by Boldin to Madame Szemere, for the certificate of stock, or that he had in any' way purchased it, or had any interest in it.

Nor is there any proof of any contract or agreement between Boldin and Madame Szemere respecting the shares. Boldin stands before the Court in no other situation than holding in his hand the naked blank power of attorney and the certificate of stock.'

Under these circumstances, it is only in consequence of either one of two conditions that Messrs. Cox & Co. can claim any property or interest in these shares.

*356Either, 1st, In consequence of the legal character of the certificate;

Or, 2d, In consequence of title derived by force of the circumstances under which the certificate was delivered to Boldin.

As to the first position that Boldin has acquired property in these shares in consequence of the legal character of the certificate — There is but one species of character which instruments in writing possess, by force or virtue of which alone Boldin can claim title in these shares, and that is negotiability. Is a certificate of stock a negotiable instrument ?

No contract was assignable by the common law; bills of exchange are an exception by universal commercial law. d3ut it required an Act of Parliament to make even promissory notes negotiable.

This strict rule is by no means one of a technical character. As late as 1856, in *Dixon vs. Bovil,*39 Eng. Law and Eq. Rep., 47, a case decided in the House of Lords, the Lord Chancellor said : “ It is a rule founded in extremely good sense. In England, a plaintiff suing on a contract, unless it be under seal, must prove a consideration. In England it is a perfectly good defence to show illegality of consideration. When an action is brought by one of the contracting parties, illegality of consideration can always be pleaded as a defence. It is the policy of the law to preserve this principle intact, in order to prevent Courts being made ancillary to violations of law. Now this principle is entirely defeated if a contracting party can make a floating contract enforceable by bearer, for the bearer does not sue as assignee of the original contracting party. He may be, and probably is, a stranger to the original contract. His right, if any, is under an independent contract with himself, against which no illegality, as between the original parties, can be set up. Bills of exchange have been made an exception for the convenience of trade, but it is an exception not to be extended. The drawer of the bill gives to the endorser a better title *357than his own, and this leads or may lead to many ill consequences, but mercantile convenience has sanctioned it. No such necessity, however, exists iti the case of other contracts, and there is no authority to warrant it. Indeed, I may observe that the Stat. 12, Geo. Ill, c. 92, sec. 36, affords statuta-ble authority by analogy against the present claim, for if a promissory note could not have been made transferable by indorsement, at common law, there would have been no necessity for that statute.”

This being the wisdom and policy of the law, an examination into the principles of negotiable paper and a deduction from all the decisions will show that, in order to entitle any instrument to the character of negotiability, there must be invariably two essential ingredients—

*First.*That it must be by the custom of trade transferable like cash upon delivery.

*Second.*That the legal title must be conveyed to the person holding it, so that he may maintain an action in his own name.

See note to *Miller vs.*Race, 1 Smith’s Leading Cases, 250, and Broom’s Commentaries on Common Law, 441.

As to the first point, that to make an instrument negotiable it must by the custom of trade be transferable like cash upon delivery.

The custom of trade cannot be permitted to control the policy of law, and evidence of its custom must be permitted only in subordination to that general policy. No proof of custom would permit usury. But even if evidence of custom were permitted, it has utterly failed in the present instance. There is not á particle of proof by any one of the witnesses that such is the custom.

As to the second point, that it is of the essential characteristic of a negotiable instrument, that it must be capable of being sued on by the party holding it.

*358The certificate of Stock is in these words:

CERTIFICATE OF STOCK.

South Carolina. No. 5,600.

This certifies that Madame Leopoldine Szemere, *nle*de Turkovics, Paris, is entitled to fifty shares in the State Bank, transferable only at the bank, by the said Madame Leopold-ine Szemere, *nle*de Turkovics, Paris, personally, or by her attorney.

Witness the seal of the company, and the signa-[Seal.] ture of the president, at Charleston, this tenth day of July, 1852.

EDWARD SEBRING,

*President State Bank.*

It is to be observed that this is not a contract for the payment of a sum certain; it is a declaration that one is entitled only to a division in the uncertain profits of the corporation.

Next — even with regard to bills of exchange and promissory notes, they must be made payable to bearer, holder, order, assigns, or some such equivalent word, in order to give the person holding them, by assignment, or endorsement, a right to sue upon them. Byles on Bills, 62.

Next — the certificate is under seal, and even a sealed note loses its negotiability by the seal. *Foster vs. Floyd, 4*McC., 159.

But the case of the *Commercial Bank vs. Kortright,*22 Wend., 34S, will be quoted to prove that an action of assump-sit will lie against a bank by one holding the certificate of shares, and a blank power of attorney, even when there was no transfer on the books of the bank.

The case of Kortright, however, is essentially different from the present case. It was this: Barker, being owner of stock, sent the certificate, with a blank power of attorney, to one Barton, to effect a loan of $ 10,000, Kortright advanced the money, and took the certificate and the blank power. Barton paid the money to Barker, and then absconded. Kortright *359then demanded a transfer of the shares from the bank, but it was refused from some reasons connected with another bank. Upon the refusal, Kortright brought an action of assumpsit against the bank for damages. There was much question whether the action should not have been in case, but the Senate of New York, constituting the highest Court of Appeals, decided, with a strong dissenting opinion, from the Chancellor Walworth, that assumpsit would lie. Now, the essential difference between Kortright’s case and this is, that the consideration money, the value of the shares, was paid by Kortright, and was received by Barker, the original owner of the shares. Barker never resisted the transfer, but the bank undertook to do so, and Kortright being, in consequence of the receipt of the money by Barker, the equitable owner of the shares, the Court held that there was an undertaking, on the part of the bank, to permit the transfer, and having refused, an action lay for damages. In the present case, no money has been paid to Szemere; there is nothing to constitute Messrs. Cox the equitable owners in the sense and manner that Kortright was.

This view of Kortright’s case was afterwards sustained and expressed in another case which arose in New York, in reference to the same bank, the case of *Dunn vs. The Commercial Bank,*11 Barb., 581. This case, besides sustaining the point under discussiou, is, in all its other circumstances, so very similar to the present, that it may be regarded as conclusive of the whole matter.

The action in Dunn’s case, as in Kortright’s, was in as-sumpsit. The certificate of stock was as follows:

No. 314.

COMMERCIAL BANK OF BUFFALO.

It. is hereby certified that John Cleveland Greene is entitled to one hundred shares, of one hundred dollars each, in the capital stock of the Commercial Bank of Buffalo, transiera-*360ble only in the books of the ban|¿: by the said stockholder or his attorney, on surrender of this certificate.

In testimony whereof, the cashier has set his hand, this 24th day of June, 1S36.

100 Shares. J. STEIN HAM, *Cashier.*

To the certificate was attached a power of attorney in the following form:

Know all men by these presents, that I, John Cleveland Greene, for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer unto------one hundred shares of the Capital Stock of the Commercial Bank hereunto annexed, standing in my name on the books of the said bank, and do hereby constitute and appoint-------my true and lawful attorney, irrevocably, &c., &c., do sell and transfer, &c., &c.

Signed by J. C. GREENE, [l.s.]

At the trial in the Court below, it was insisted that no evidence had been presented that the plaintiff was the assignee of the stock or entitled to the same. The Judge charged for the plaintiff against the bank, and a verdict was found accordingly. But the Supreme Court sent the case back, and in doing so said, after stating the facts of Kortright’s case: “ There is a manifest distinction between that case and this. Here there is no evidence that the plaintiff, Dunn, purchased the certificates. He does not prove that he owned them or had any interest in them whatever. It is true, he had possession of the certificates standing in the name of Greene and Buckland, and attached to such certificates were blank assignments and powers of attorney, authorizing the transfer to blank by blank attorney. If the plaintiff was the purchaser of these certificates, he was undoubtedly authorized, by reason of such purchase, and his ownership thereof, to write in his own name as he chose, as the attorney to make such *361transfer. So far, the case of *Kortright vs. The Commercial Bank of Buffalo*decides. *But it does not decide that the naked possession of the certificates and blank assignments and powers of attorney is evidence of both.*Are certificates of slock, in reference to negotiability, placed on substantially the same ground as bills of exchange and promissory notes ? Are they transferable by mere endorsement and delivery? Are a bond and mortgage, or any other evidences of debt not negotiable, assignable by the mere act of writing the name of the party on the back, and delivering the instrument with the name on so endorsed, without any consideration or agreement? If not, is it not incumbent upon the party claiming under such transfer,'to prove the contract or consideration? I have found no case where the holder of an instrument was authorized to write the contract under which *he*claimed, over the signature or endorsement, except when the proof of the consideration and contract was first made. See *Leonard vs. Vredenburgh,*8 John, 29; *Bailey vs. Freeman,*II lb., 121; *Herrich vs. Carman,*12 lb., 159; *Nelson vs. Dubois,*13 lb., 175 ; *Campbell vs. Butler,*14 lb., 340.

“So, in the case of *Kortright vs. Commercial Bank, wo.*agreement and consideration was proved. But in this case the Court are called upon to presume, from the plaintiff’s possession of the certificates and blank assignments and powers of attorney annexed, *that he purchased the stock of Greene*and Bnckland, and that his name was iuserted or assumed to be iuserted in the instrument as assignee. The plaintiff not only asks the Court to assume the existence of the contract or consideration to support the assignment, but that the name of Isaac T. Hatch, or the bank itself, is inserted in the instrument as the attorney of Greene and Buck-land, and that they are thereby authorized to assign the stock on the books of the bank to the plaintiff. It seems to me that this is carrying the rule — already sufficiently broad — beyond all precedents on that subject, and for one, I cannot consent to extend it beyond cases already adjudicated.”

*362But the argument has been pressed that from the following clause in the Act of Incorporation, of 1802, 2 Faust, 464, “ That the stock of the bank shall be assignable and transferable according to such regulations as may be instituted in that behalf by the directors,” it is the intention and effect of the Act to make the certificate negotiable. Directly the reverse is the case. The object of that clause was not to confer any assignable or transferable quality upon the shares, for that to the same intent as all other non-negotiable contracts they already possessed by the general law'-; but the very plain and evident intention was to confer the authority upon the directors to make such rules as they desired. It was in reference to the regulations of the directors that this section of the Act was drawn — not to the transferability of the stock. And for this very excellent reason, that it concerned the directors very much to know who were and how many were stockholders of the bank. It would have been most ruinous if the bank were exposed to the suit of every one who happened to have in his possession a certificate of the stock. But it is said that the bank has made no regulation on the subject. This certainly is not so. The bank has made regulations. There are regular transfer-books kept, which, of course, are the highest evidence of the title to the shares. And the directors have fixed the terms and the language of the certificate of shares. This certificate declares that the shares are “transferable only at the bank.” This is the regulation which the directors have made upon the subject. It is not the less a regulation because it is contained in the certificate. It is, perhaps, the most solemn and authentic regulation of the directors, because it is certified by, and has the sanction in each case, of the signature of the president and the seal of the corporation. So far from affording any greater facilities to the transferability of the shares, this clause of the charter was expressly enacted to enable the directors to restrain this facility, and this for the safety of the bank and the community, as will appear from the remarks of Chancellor Wal-*363worth, in *22*Wend., *353:*“Indeed,” he says, speaking of New York, “the Legislature of this State, when they wished to restrain the negotiability of the certificates of deposit of the New York Life Insurance and Trust Company, so as to prevent them from forming a part of the currency or circulating medium of the State, supposed it to be merely necessary to insert a provision in the Act of Incorporation that such certificates should only be transferable on the books of the company according to such regulations as the directors should establish, in the same manner as the stock was transferable. I recollect distinctly being applied to by a committee of the Senate on the subject — (as the principal object of the Legislature, in granting that Act of incorporation, was to provide a safe place for the investment of funds belonging to suitors of the Court of Chancery, and of infants whose funds were under the protection of that Court and the Surrogate’s) — and that this amendment was inserted for the express purpose of preventing a custom of Wall street, or any other custom, making that negotiable by a blank transfer which the Legislature had determined should not be negotiable .by mere endorsement or delivery.”

The certificate of stock, upon these principles, not being negotiable, the direct authorities on the subject entirely sustain all that has been said. The first to be noticed is that of *Dunn vs. The Commercial Bank,*11 Barb., 581, which has been already noticed. The question of negotiability of certificates of stock was also made in the case of *The Mechanics’ Bank vs. The New York and New Haven Railroad Company,*3 Kernan, N. Y. Rept., 599.

In this case, the Judge, in delivering the opinion of the Court of Appeals of New York, says: “ It seems to me, therefore, that we are brought directly to the question, whether certificates of stock in the defendant’s corporation are to be regarded as negotiable instruments, in the sense of the commercial law, so that by their endorsement and delivery to a purchaser, in good faith, a title to the stock they profess *364to represent may be acquired, although in the hands of the vendor they are spurious and void, and although the company itself has never recognized the transfer. This question, I think, must be answered in the negative. They contain, in the first place, no word of negotiability. They declare simply that the person named is entitled to certain shares of stock. They do not, like negotiable instruments, run to the bearer, or to the order of the party to whom they are given.

***jfc * * * * * *

“I have examined attentively the authorities cited upon the question, but do not find that the doctrine contended for has in them the least support. In the case of *Kortright vs. the Commercial Bank,*20 Wend., 91, and 22 Wend., 347, it was held that an action of assumpsit will lie against the corporation in favor of the assignee of a stock certificate for refusing to permit a transfer on the books. This, and the class of cases to which it belongs, proves that a transfer, not made according to the charter or by-laws of a corporation, confers upon the transferee, .in an equitable sense, the title of the previous owner. That, being thus clothed with the equitable title, it is the duty of the corporation to permit him to take a legal transfer on the books, and that the law will imply an assumpsit for the performance of that duty. For a breach of this duty, actions of assumpsit and case have been indifferently maintained. In principle, the remedy should have been a special action on the case. Such was the opinion of Chief Justice Nelson, in the case referred to; but he adds: ‘It being once settled that assumpsit will lie, there is no occasion for disturbing it.’ It is only material to observe that the assumpsit is not in the certificate itself, and so passing by endorsement and delivery to the transferee, but is implied after the transfer, from the duty of the corporation to clothe the equitable owner with the legal title. Such cases, so far from tending to show that a dealer in certificates acquires rights better than those of the person with whom he deals, seem to me to justify quite an opposite conclusion. They *365necessarily assume that the change of title is incomplete until the proper transfer is made on the books. * * *- *

*“ Looking at the question upon*principle, *1 am not aware of anything in the nature or uses of this kind of property, which requires an application of the rules which belong to negotiable securities.*Stocks are not like bank bills, the immediate representative of money, and intended for circulation. The distinction between a bank bill and a share of bank stock, is not difficult to appreciate. Nor are they like notes or bills of exchange, less adapted to circulation, but invented to supply the exigencies of commerce, and governed by the peculiar code of the commercial law. They are not like exchequer bills and government securities, which are made negotiable either for circulation or to find a market. Nor are they like corporation bonds, which are issued in negotiable form for sale, and as a means for raising money for corporate uses. The distinction between all these and corporate stocks, is marked and striking. They are all, in some form, the representative of money, and may be satisfied by payment in money at a time specified. Certificate's of stock are not securities for money in any sense, much less are they negotiable securities. They are simply muniments and evidence .of the holder’s title to a given share in the property and franchises of the corporation of which he is a member. The primary use and design, I must be allowed to say, of this species of property is to afford a steady investment for capital, rather than to feed the spirit of speculation. I am aware that people will speculate in stocks, as they sometimes do in lands, and there is no law which absolutely forbids it; but such, I am persuaded, is not the use for which we should hold them chiefly intended.”

In Edwards on Bills of Exchange, page 61, it is said : “A certificate of stock, which is not a contract for the payment of money, and is not in its terms negotiable, is an entirely different instrument, and is not placed upon the footing of commercial paper, and, consequently, the lender taking it in good *366faith as a security for a loan of money, does not thereby acquire such a right as against the corporation, as will entitle him to compensation, notwithstanding the certificate was fraudulently issued by the assent of the corporation. In other words, certificates of stock in a banking association, or in a railroad company, are not securities for the payment of money that may be transferred, subject to the rules applicable to negotiable paper; on'the contrary, they are simply the muni-ments and evidence of the holder’s title to a given share in franchises of the corporation of which he is a member.”

The question of the negotiability of instruments, similar to bank stock, has very recently, in 1858, been examined by the Supreme Court of the United States in the case of *Combs vs.*Hodge, 21 Howard, 397. The following is a statement of that case: Combs was the proprietor of bonds issued by the State of Texas, which concluded in this way: “This certificate is transferable by the said Leslie Combs, or his legal attorney or representative, on the books of the stock commissioner only.”

In 1840, Combs endorsed two of these certificates in blank, and placed them in the hands of James Love, of Galveston, for the purpose, as he alleged, of enabling Love to receive payment, which was then expected, but which was not made.

Love transferred the bonds fairly to one Andrew Hodge, for valuable consideration. By subsequent legislation of the United States and of Texas, the bonds became payable at the Treasury of the United States, where payment of them was* demanded by J. Ledgear Hodge, the administrator of Andrew Hodge. Whereupon, an injunction was obtained by Combs, to stay the payment of the money until it could be decided to whom it was legally due, by proceedings between the parties, in the nature of a bill of interpleader, which were instituted in the Circuit Court of the District of Columbia. This Court dismissed the bill of the plaintiff, Combs; upon an appeal to the Supreme Court of the United States, *367the Court reversed the decree of the Circuit Court, dismissing the bill; but in delivering their opinion, the Supreme Court said, that the “case is presented in an unsatisfactory manner,” and ordered the cause back to the Circuit Court, “ with directions to allow the parties to amend the pleadings and to take testimony, if they should be so advised.”

Although the case was thus not finally disposed of, the Supreme Court expressed itself very emphatically and distinctly, as to the character of the class of instruments which was the subject of the suit.

The Court said: “ *The title of the defendant, therefore, depends upon the effect to be given to the endorsement of the certificates in blank by the plaintiff and their deposit with Love.*The question is, was he invested with such a title that a *bona fide*purchaser, having no notice of its infirmity, will be protected against a latent defect ? The law merchant accords such protection to a holder of a bill of exchange taken in the course of business, and for value, and without notice; and legislation, in Great Britain and some of the States of the Union, has extended to the same class of persons a similar protection in other contracts.

“But this concession is made for the security and convenience, if not to the necessities and wants of commerce, and is not to be extended beyond them. It is a departure from the fundamental principle of property — which secures the title of the original owner against a wrongful disposition by another person, and which does not permit one to transfer a better title than he has.

“The party who claims the benefit of the exception must come within all the conditions upon which it depends. In the case of bills of exchange that have originated in fraud or illegality, the holder is bound to establish that he is not accessory to the illegal or fraudulent design, but a holder for value. If the bill is taken out of the course of trade, or overdue, or with notice, the rights of the holder are subjected to the operation of the general rule. In *Jlshurst vs. The Man**368*ager of the BanJc of Australia,*37 L. and Eq. R., 195, Justice Erie says : ‘ It seems to me extremely important to draw the line clearly between negotiable instruments, properly so-called, and ordinary chattels, which are transferable by delivery, though the transferrer can only pass such title as he had. As to negotiable instruments during their currency, delivery to a *bona fide*holder for value gives a title, even though the transferrer should have acquired the instrument by theft, but after maturity the instrument becomes, in effect, a chattel only, in the sense I have mentioned.’

“When the instrument is one which by law is not negotiable, or when the negotiability has been restricted by the parlies, the rule of the law merchant has no application. The loss of the instrument with the name of the payee upon it, or its transfer by a faithless agent, does not impair the title of the owner. Nor can a purchaser safely draw any conclusion from the existence of an endorsement on such a paper, that the holder is entitled to sell or discount it. *(Berdebach vs. Wilkins,*10 Harris, 26; *Ames vs. Drew,*11 Foster, 475; *Synunds vs. Atkinson,*37 L. and Eq., 585; 25 L. and Eq., 318.) Nor can the holder write an assignment or guarantee not authorized by the endorser (4 Duer, 45 ; 25 L. and Eq., 19 ; 6 Harris, 434). This doctrine has been applied to determine conflicting claims to public securities which were not negotiable on their face, though the subject'of frequent transfers.

“ The suit of *Toultin vs. Fuller,*3 Doug., 300, was for four victualling bills, drawn by commissioners of the victualling office on their treasurer, in favor of their creditor. These were sent to an agent, with a power of attorney, ‘to receive the money and give receipts and discharges;’ who pledged them for an advance of money. Lord Mansfield said, the only question is, who has the right of property in this bill ? It must be the plaintiff, unless he has done something to entitle another. It is deposited with the defendant, by one who had it under a limited power of attorney. If the plaintiff had *369ever consented to the disposal of the bill, he would not be allowed to object, nor would he if the money had ever come to his use. But here there is no such pretence.”

*Glynn vs.*Baker, 13 East, 500, was a suit for bonds of the East India Company, payable to their treasurer, and sold with his endorsement. Le Blanc, J., said:

“ Here are persons intrusted with the securities of A and B, who part with the securities of A, and when called on for them, give the securities of B. That difficulty can only be met by assimilating such securities to cash, which, whether it has an ear mark set upon it or not, if passed by the person entrusted with it to a *bona fide*holder for valuable consideration without notice, cannot be recovered by the rightful, owner, but how does the similitude hold?”

And Lord Ellenborough said, “any individual might as well make his bond negotiable.” * * * * *

“ *We have considered this cause upon the assumption that the defendant was a holder for value."** * * *

In delivering their opinion in this case of *Combs vs. Hodge,*the Supreme Court of the United States quoted and relied upon thp case of *Dunn vs. Commercial Bank of Buffalo,*11 Barb., 580.

It has been urged, in argument, that certificates of stock are negotiable from their analogy to certain instruments of negotiable qualities, such as dock warrants, exchange bills and India warrants, and to bills of lading, whose negotiability is by no means conceded, but yet contended for. To this it may be conclusively answered that, it is evident that the first of these documents are not negotiable since it required the Stat., 6 Geo. IV, c. 94, to render them so, even in certain cases. And, in *Evans vs. Truman,*2 Barn, and Adol., 886, it was decided, with regard to East India warrants, one of the most important of the class, that where the provisions of that statute do not apply, there is no negotiability for those warrants at the common law. The argument in favor of the negotiability of bank certificates, from a comparison to bills *370of lading, is equally untenable, for a bill of lading is not a negotiable instrument — it is not transferable, like cash, upon delivery, nor can the person holding it maintain' an action on it in his own name. The case of *Lickbarrow vs. Mason, 2*T. R., 63, is relied on as establishing the doctrine of the negotiability of a bill of lading. But “that case refers only to those instances in which a previous sale of the goods has been made to the consignee, and merely determines that if the vendee of goods re-sell them after they have left the custody of the vendor, to a *bona fide*purchaser for value, the right of property acquired by the latter shall not be defeated by a subsequent stoppage in transitu, if he have taken an assignment of the bill of lading.”

The idea which has been sometimes inaccurately expressed with regard to the negotiability of a bill of lading, has been very ably confuted in a note, by *the*American editor *of*Smith’s leading cases, to the case of *LicJcbarrow vs. Mason,*the conclusion to which is as follows: “The whole of the argument against the negotiability of the bill of lading, may be summed up in a single sentence, by saying that to impress a character so new and extraordinary upon an instrument not for the payment of money, requires the authority of at least one decision, while no such decision can be found.”

This certificate being thus in no respect negotiable, the next question is, whether Messrs. Cox & Co. can claim title to it from the transfer to them by Boldin, by virtue of the circumstances under which it was placed in Boldin’s possession by Madame Szemere. These circumstances can, but from two considerations, be supposed to confer any authority upon Boldin to convey a title to Cox & Co.

1. It may be said that Madame Szemere, having invested Boldin with all the indicia of title, and having held him out to the world as the owner of the shares, should be liable upon any transfer which he may have made.

*2.*That Madame Szemere, having invested Boldin as an agent, with the power to sell, she is bound by his agency.

*371In other words, that Madam;e Szemere, having represented Boldin either as owner or as agent, she is bound by all that he has done.

As to the first proposition. It is not true that Madame Szemere invested B >ldin with all the indicia of title,'or held him out to the world as owner, so as to be liable upon any transfer which he might make. For this could be so only because the possession of the certificate conferred the legal title upon him, which is contrary to all the testimony, (see Sebring’s, the president’s,) and is in effect establishing that the certificate is a negotiable instrument. Or, because the mere possession of the certificate and the power of attorney indicated such absolute ownership, that any transfer which he might make, was conclusive against the true owner.

It is difficult to ascertain upon what precise ground the circuit decree rests its decision. In the first part of the decree, on the sixth page, the Chancellor says that he is inclined to think that the preponderance of argument and authority is in favor of the position that certificates of bank stock are transferable by delivery, but that he does not rest his judgment upon that ground. On the next page, when he is discussing the principles upon which he does rest his decree, he says, and the same idea is repeated throughout the decree, that by delivering the certificate of stock and the power of attorney to Boldin, Madame Szemere invested him with all the indicia of property and ownership, as to the said shares. This is but declaring that the certificate and the power of attorney are negotiable, and that by the delivery of them the right to the shares passes. How can the mere delivery of the certificate and the power of attorney invest one with all the right of ownership, unless they be negotiable in. their character ? And yet the Chancellor says that he will not rest the decree upon the ground that the title to the shares passed by the delivery of the certificate. This is a manifest inconsistency, and shows that while the Chancellor thought he was deciding the case upon other principles, he was, in reality, decid*372ing it upon the ground that the title passed by the delivery of the certificate.

On the top of the 8th page, there is a declaration which at first appears to afford the unconfused idea upon which the decree rests. The Chancellor says:

“There is no doctrine of equity jurisprudence better supported by reason, as well as authority, than this: that where one *of two*innocent persons must suffer loss, it must fall on the party who, by incautious and misplaced confidence, has occasioned it, or placed it in the power of a third party to perpetrate the fraud by which the loss has happened.”

Now, this doctrine of equity jurisprudence, to which the Chancellor refers, proceeds upon the ground of constructive fraud — that is the reason of the rule. See 1 Story Eq., sec. 385. And fraud cannot be implied unless upon the doctrine of *estoppel,*that is, that a party has done some improper or wilful act, to which another has given credence, and to which the assertion of his own rights would be contradictory. If Madame Szemere had invested Boldin with all the indicia of title — if she had regularly transferred the shares to his name on the books of the bank, she would now be estopped from gainsaying the language which such indicia of title would hold, even although Boldin was not the owner of the shares. But, if she has not done an act which invests Boldin with the indicia of title, and by which she would now be estopped from saying that the title is still in her, she cannot be held amenable to a principle of equity jurisprudence, which proceeds only upon the doctrine of estoppel. That the mere possession of the certificate and the power of attorney, is not the possession of the indicia of title, is apparent from the testimony, and every authority which has been cited. The Chancellor’s application of the doctrine of constructive fraud, can proceed only from the idea that the title to the shares passed upon the delivery of the certificate, the ground upon which he desired not *to rest*his decree.

The mere possession of property is not the possession, of *373all the indicia of title, and the application of this doctrine of constructive fraud, that in cases where one of two innocent persons must suffer loss, the loss should fall upon him who is the occasion of that loss, to instances of the disposal of property by one who is merely in possession of it, is entirely inconsistent with a number of well recognized and adjudicated cases. If the doctrine referred to by the Chancellor can be made *to*apply to the case of Madame Szemere, it should equally have applied to the deposit by Combs in the hands of Love, of the Texan certificates, with the blank endorsements, and yet the Supreme Court decided that Love could convey no title. So, in the very recent case of *Carmichael vs. Buck,*decided in this Court, it. is said: “ If the mere custody of property is such evidence of ownership as to mislead, then what can a bailor do? Must he lose his property unless he go along and make continual proclamation of his rights and the limited contract he has made?

“ There is no other solution of the difficulty, it seems to me, but to declare that when one, for a specific purpose, commits his property to a limited agent, in the usual way of doing such things, he is not to be accused of holding out the agent as more than he is, or giving him the indicia of property. **** * * * * *

“Now, what indicia of ownership did Carmichael impart to Huggins ? None whatever, according to the proof, except giving him possession, and if the possession of a bailee of this description is a sufficient indicium of ownership, to be construed into a misleading of the public, it will no longer be safe for a planter to send his cotton to market by a wagon or boat.”

There is this difference between Carmichael’s case and that of Madame Szemere, that the raft, in his case, contained no evidence whatsoever that it did or might belong to any one else; while Madame Szemere did that which, in the striking language of Carmichael’s case, was a “ continual proclamation of her rights.” The certificate was in her *374name; it declared that the shares were her property, and the power of attorney which accompanied it, was special and limited by its terms to the execution of a single act.

There are many other cases which illustrate these views; and.here it will be proper to notice the case of *Pickering vs. Busk,*15 East, 3S, which will be quoted on the opposite side. In that case, the purchaser of hemp had, at the time of the purchase, given orders in person that it should be transferred on the books of the warehouse from the name of the owner to the name of a broker, and a subsequent sale by the latter, without further proof of authority, was held valid against the first purchaser, in consequence of the particular course of conduct adopted by the latter. It was not the mere possession of the hemp that rendered the sale valid by the broker, but the possession of the hemp in connection with the transfer to the name of the broker on the books of the warehouse. Here was a concurrence of possession and of the indicium of title, as the entry on the books was an evidence of title. If Madame Szemere had actually made a transfer on the books of the State Bank, of the shares to the name of Boldin, this case would have been perfectly analogous to *Bickering vs. Busk,*but wanting that transfer, it wants everything which makes *Pickering vs. Busk,*applicable to her case.

In the case of *McCombie vs. Davis, 6*East, 538, a broker, who had been in the habit of dealing in tobacco on his own account, purchased a quantity of it in his own name, and had it entered as his own in the king’s warehouse. He subsequently pledged the tobacco as his own property, and for valuable consideration, to the defendant, against whom the real owner, on whose account the original purchase was made, brought trover. The question here presented was, whether the owner of goods, who has entrusted them to the possession of an agent, under circumstances which will enable the agent to impress other parties with the belief that he is the owner, will be bound by the contracts of the agent, *375and the Court determined that, in the absence both of property and authority in the broker who had'made the pledge, the plaintiff was entitled to maintain his action. In this case, as in the case of *Pickering vs. Bush,*an entry was made of the property, on the books of the warehouse, in the name of the agent; but with this great difference between the cases, that in *Pickering vs. Busk,*the entry was made by the owner, in *McCombie vs. Davis,*the entry was the act'of the ageut.

In *Guerreiro vs. Peile,*3 Barn, and Aid., 616, 5 Eug. Com. Law, 399, the plaintiffs entrusted Burmeister & Vidal, merchants, in London, with twenty-five pipes of wine, and a general authority to sell. Burmeister & Vidal bartered the wine with the defendants for a quantity of rum. The defendants did not know that Burmeister & Vidal were merely factors,'but, upon an action brought for the recovery of the wine, upon the ground that the authority of the agent was. to sell and not to barter, the Court held that the plaintiff could recover.

To the same effect see also *Monk vs. Whittenburg,*3 Barn, and Adol., 4S4 ; *Taylor vs. Kymer,*3 Barn', and Adol., 320; *Andrews vs. Dietrich,*14 Wend., 31.

On the sixth page of the printed decree, the Chancellor says, that the provision of the charter of the State Bank “that the stock of the bank shall be assignable and transferable according to such regulations as may be instituted in that behalf by the directors,” was “ intended for the convenience, protection and security'of the bank, and it is to give the bank notice and information as to who are the stockholders ;” and “ that the transfer of stock by the owner, though not in accordance with the form prescribed by law, will pass all the right of the shareholder in equity, if not in law.” To this it may be answered, that it is difficult to perceive in what way the provision of the charter referred to can conduce to the convenience, protection or security of the bank, or inform them who are the stockholders, if, as in the *376present instance, the certificate of stock could, without the knowledge of the’ bank, be-floating over the continent of Europe for three years, the property of, it may be, a dozen different proprietors, conveying at each transfer the title to the shares in equity, if not in law. If by the word *“transfer,”*used by the Chancellor, he meant anything done by the person in whose name the stock stood on the books of the bank, in consequence or furtherance of a contract proved with him, or a consideration paid to him, the law undoubtedly is as he has stated it, But, if by the word “ transfer,” he means merely the. passing or delivery, or the possession of the certificate of stock, without proof of any contract or consideration, he has overlooked what was decided in the cases of *Dunn vs. The Commercial Bank,*11 Barb., 581, and *Combs vs. Hodge, 21*How., 359, and is amply supported by other authority, that the naked possession of the certificate and power of attorney, without proof of consideration paid to, or contract made with the owner of the stock, is no evidence of title. The question has been made in a number of instances, *but it is very important to remark, that in every case in which it has been decided that the holder of the certificate was entitled to the shares without the formality of a transfer on the books of the corporation, a consideration has been proved to have been paid to the former owner of the certificate, or a contract made with him.*This essential condition has escaped the Chancellor’s attention throughout the whole of his decree.

The following are some of the cases which have been and will be relied on to prove that the title to stock will pass even although there had been no transfer on the books. But in all of them it will be seen there was either a contract proved or a consideration received by the owner. In the *United States vs.*Vaughn, 3 Binney, 394, the question was between an attaching creditor and a bona fide purchaser for valuable consideration, to whom the certificate of the stock and a power of attorney has been delivered, although as yet there *377had been no transfer on the books of the bank. It was held that the attachment would not lie. But it was the bona tides of the transaction, and the payment of the purchase money which gave the purchaser all his equity.

In *Bank of Utica vs. Smalley &r Barron, 2*Cowen, 770, a person had been called as a witness for the bank. He was objected to because he was a stockholder. He immediately made a transfer of all his shares to one N. Williams, and was called again as a witness. He was again objected to, on the ground that the transfer was not complete, not having been made on the books of the bank. But the Court held that he was competent. This was evidently upon the ground that the assignment thus made was done in pursuance of the express consent and contract of the owner of the shares.

In *Turner vs. Marblehead Ins. Co.,*10 Mass., 476, there was a bona fide sale by a debtor to his creditor, and the Court said that such a sale in satisfaction of the debt, was sufficient to transfer the equitable interest. Here the debt was the consideration.

So little regard do the banks pay to the possession of the certificate, that it. is said in Angel and Ames on Corp., sec. 565, “A person to whom shares have been bona fide transferred, will hold them without any certificate.” And it is the common and constant practice to issue a new certificate of stock upon affidavit of the loss of a former one, after three months advertisement in the-papers. Now, this certificate and power of attorney had been three years and three months in the possession of Boldin, without the knowledge of Sze-mere, during the whole of which time the bank was recognizing his wife as the owner of the.shares, and paying her the dividends. Suppose that Szemere, finding that Kuht-mann had not, as he thought, the certificate, had, after six months or a year, or even two years, made an affidavit of the loss, as he supposed, of the certificate, and advertisement had been made in the Charleston papers, of which Boldin, in Paris, might very probably have had no knowledge, and that *378then a new certificate had been issued to Szemere; upon the supposition that the certificate is the true indicium of title, which of these two would have been regarded as the true one? Could the fraudulent concealment of the certificate by Boldin have given him any title?

Besides, if the power of attorney and the certificate of the shares are indicia of title and of ownership, they must have been so from the date of the power, November 11th, 1852. In the meantime, and until the 14th February, 1S56, the date of the transfer to Messrs. Cox & Co., a period of three years and three months, what had become of the dividends of the shares? The certificate still at that date, in the name of Mdme. Szemere, was proof that the shares had been uii-transferred on the books of the bank, and, of course, that she alone could receive the dividends. If, according to the Chancellor’s view, the mere delivery of the certificate was a disposal of the shares, what right could she have to the dividends? This severance of the right of the shares and the right of the dividends, is the necessary consequence of the idea that the delivery of the certificate passes the title to the shares. In the three years which had elapsed since the date of the power, six dividends had accrued, and it is in proof that they were received by Mdme. Szemere — they could have been received by no one else. If the delivery of the certificate has the consequeuces contended for, six persons may have been the owners of the shares without having received the dividends. Of this extraordinary embarrassment Messrs. Cox & Co. must legally be supposed to have been informed.

If Szemere had been-curious to impress upon these shares the fact that his wife was the true legal owner of them — if he had tasked his ingenuity to excite investigation and challenge suspicion, and invite and waru people to be upon their guard, what more could he do than he has done. Not only did the certificate announce that it was his wife who was entitled to the shares, not only does it contain no words analogous to *379assigns, not only does it say that the shares can be transferred, not in Europe, or anywhere, but only in a particular place, and^according to the directions of a particular body, but it was accompanied with an imperfect power of attorney — a stale, antiquated power of attorney — more than three years old, whose very dates and gaps were sufficient to excite the alarm and suspicion of any man who was not careless as to how he might ruin and embarrass himself. And this is called arming Boldin with all the indicia of title to entrap the unwary. Laying aside all legal considerations and authorities, there is- not a single witness who has not expressed himself with great distrust as to the property which he thought Boldin had in this certificate.

In the opinion of the Chancellor, the statement made by Mdme. Szemere in her answer, that she delivered the certificate of the shares and the power of attorney to Boldin, for the purpose of his sending them to Kuhtmann to collect the dividends, is an absurdity, which is inconsistent with the possession of Kuhtmann of another power of attorney, under which all the dividends had been received. But whatever may have been the motive of Mdme. Szemere, such motive cannot control the legal effect and operation of the certificate. If her acts, of themselves, are not necessarily illegal and fraudulent, the mere conjecture and surmise of their absurdity cannot give them that character. The intention of Mdme. Szemere is not a matter of any proof in the case, it is her own declaration which must be taken as she states it, or not at all. But attention to the imperfect knowledge which Mons. and Mdme. Szemere possess of the English language and commercial custom, and to the dates of the two powers of attorney and the certificate of stock, would have convinced the candid and impartial mind of the lamented Chancellor, of the consistency of her statement. It will be seen from the testimony of Mr. Ravenel, and from the transcript by Mr. Jervey, from the books of the State Bank, that prior to July, 1852, Mdme. Szemere was entitled to thirty *380shares in the bank. The dividends in these shares were collected on the 2d July, 1852, by Kuhtmann, under the power of attorney which he possessed, dated 26th April, 1852. The additional shares, which are the subject of this suit, were purchased on the 10th of July, 1852, a few days after the receipt by Kuhtmann of the dividends of the thirty shares. On the llth November, 1S52, before the accrual of any dividends on the recently purchased fifty additional shares, the second power of attorney was given to Boldin to be sent to Kuht-mann in time for the collection of the January dividends on the fifty shares. Mdme. Szemere believing that without this additional power of attorney, the dividends could not be collected. That the power of attorney is to transfer and not to collect the dividends, can be explained from their imperfect knowledge of the English language and ignorance of business. The whole transaction is stated in the answer under the sanction of their oath, with the unreservedness of persons who prefer to rest the defence of their right upon a statement of the actual occurrence of facts.

If the supposition of the Chancellor be correct, that the certificate and the power of attorney were entrusted by Mdme. Szemere to Boldin for the purpose of disposing of them, that purpose must date from the date of the power of attorney, llth November, 1852. Yet the receipt of the dividends, by Mdme. Szemere, for three years, would show that she was aware that during the whole of that time he had disregarded her instructions. It is not usual nor natural that public securities should be allowed to remain for three years in the hands of an agent for sale. The acquiescence for so long a time in the conduct of an agent, is presumptive that that conduct is in pursuance of instructions, rather than that instructions have been given contrary to the continued conduct of the agent. As Mdme. Szemere continued to receive the dividends from her agent, we must presume that the instructions to that agent were rather to receive and pay her the dividends than to sell the stock.

*381The Chancellor has said that the rule of the French law, which it was contended in the argument upon the circuit, should govern the transfer or pledge by Boldin to Messrs. Cox & Co., can have no application to the case, because, according to Mr. Justice Story, in his Conflict of Laws, ch. 19, sec. 353, 3S3, an exception *to the*general rule, that the laws of the owner’s domicil should, in all cases, determine the validity of every transfer of personal property, must be made with regard to certain stocks or funds, “ such as bank or insurance stocks, turnpike, canal and bridge shares, and other incorporeal property, owing its existence to, or regulated by peculiar local laws.” The legal title to personal property of this character is not acquired unless the local requirements are complied with. Now, in the present instance, the local requirements are, that the stock should be transferred on the books of the State Bank by Mdme. Szemere or her attorney. The application, therefore, of the rule as laid down by Mr. Justice Story, taken in connection with the idea so often expressed in the circuit decree, that the entrusting Boldin with the certificate of stock and the power of attorney, was “investing him with all the indicia of property and ownership,” and “arming him with the legal title,” presents this dilemma. If the possession of the mere certificate and power of attorney by Boldin was, by reason of the requirement of the local law, the *lex loci rei silse, not*such an in vestment of absolute title in him as to give application to the French law, the *lex*domicilii, then the possession of the mere certificate and power of attorney was not such an “ arming him with the legal title” as was sufficient to enable him to deceive any one, or impose himself upon any one as the owner of the shares. On the other hand, if the mere possession of the certificate and the power of attorney was, in the words of the Chancellor, “ investing him with all the indicia of property and ownership,” and was “ arming him with the legal, title,” then the requirements of the local law, the *lex loci rei sitse*were unnecessary to the perfection of the absolute title in *382him, and the French Jaw, the *lex*domicilii, should have application and govern the case.

Since the delivery of the decree by Chancellor Dargan, the case of the *Union Mutual Insurance Company vs. The State Bank*has been decided in the Circuit Court of the United States for this State. His Honor, Judge Magrath, there expresses the opinion that certificates of bank stock are negotiable instruments. The facts were these: F. S. Lathrop, being in possession of a certificate of stock in the State Bank certifying that E. W. Bancroft was entitled to forty shares in that institution, and of a blank power of attorney executed by Bancroft, left the certificate and the power with the plaintiff as a security for a loan made to him, the said Lathrop. Some time afterwards, the plaintiff presented the certificate at the bank and requested a transfer of the said shares to its own name. The bank refused, on the ground that it had a lien on the shares, in consequeuce of the indebtedness of Bancroft to it. The action was brought to recover damages in consequence of this refusal. It is to be observed that the transfer here was refused, not, as it was in Bunn’s case, in 11 Barb., 581, because of there being no proof of any consideration received by, or contract made with Bancroft, the owner of the shares; nor was there any question of misappropriation on the part of Lathrop. Bancroft seems to have acquiesced in the fact that the shares had been *bona fide*disposed of by him to Lathrop. He laid no claim to them. The single question was, whether a bank has a general lien upon the shares of its stockholders for their indebtedness to it, so that no transfer can be made to other persons till that indebtedness is discharged. In determining this question, the negotiability of certificates of bank stock was discussed. Judge Magrath argues for the negotiability of certificates of bank stock, from their supposed analogy to railroad bonds, payable in blank, no payee being inserted. He refers to the case of *White vs. The Vermont and Massachusetts Railroad Com*pany, in 21 How., 575, where it was decided that bonds *383issued by a railroad company, payable, in blank, to a citizen of Massachusetts, which had passed through several intervening holders, could be filled up by a citizen of New Hampshire, and suit be maintained upon them. In applying the principles of this case to certificates of stock, he says that “ the principle laid down by the Court would be applicable to any other paper possessed of the same or similar qualities, and in that case, as has been seen, in testing the question of negotiability, the Supreme Court directed its attention to the form in which the paper was made, as indicative of the intention with which it was made, and to the mode of giving circulation to it, and then made reference to the usage and practice of the company by which it was issued, and of capitalists and business men, and, finally, to the decision or recognition of the principles applicable to such case by Courts and Judges.”

Now, it is remarkable that at the same term of the Supreme Court at which this case of *White vs. The Vermont and Massachusetts Railroad Company*was decided, in which the Court gave its attention to the negotiability of railroad bonds, the case of *Combs vs. Hodge,*hr which the negotiability of certificates of the public debt of Texas was discussed, was also decided; and, while .the Court held that the railroad bonds, issued in a certain form and for certain purposes, might be regarded as negotiable, it expressed itself with equal distinctness and emphasis as to the non-negotiability of the Texas certificates. The reason of this is apparent, for, upon the very principles indicated by Judge Magrath, there can be no comparison or analogy between that class of instruments known as railroad bonds and that known as certificates of stock. They are not possessed of the same or similar qualities. They are different in their form, in their intention, in the mode by which circulation is given to them, and in the usage and practice of the companies by which they are issued. It was the recognition of these differences which guided the Supreme Court in their decision in the *384two cases, and which alone can make them consistent. A railroad bond, such as was the subject of suit in *White vs. The Vermont and Massachusetts Railroad*Company, differs from a certificate of the public debt of Texas, and from a certificate of the State Bank stock, which is similar to the Texas certificate in its form. One is an obligation for the payment of money to a blank payee, his assigns or order. The other, the bank certificate, simply certifies, without any words of assignment, that a named individual is entitled to an unas-certained division of the profits of a franchise. Judge Magrath is of the opinion that the blank power of attorney which, in the case before him, was printed at the foot of the .certificate of stock, is a part of the certificate, and he would, apparently, infer that some negotiable quality was imparted to the certificate from such an incorporation of the power into it. But it is surely not the case that the power of attorney, so often printed at the foot or on the back of certificates of stock, is any part of such instruments, or enters at all into the contract made by them. Such blank powers of attorney are only printed, where they are, for the convenience of the holder. They are not contained under the seal of the corporation, or the signature of the president, and add nothing to the character of the instrument, any more than if they were written on a separate piece of paper.

A railroad bond also differs from a certificate of bank stock in the intention with which it is issued; in the mode by which circulation is given to it; and in the usage and practice of the companies by which they are issued. One is a security for money, issued in a negotiable form, for sale, in order to seek a market, and to raise money, and is satisfied by the payment of money. The other is simply a muniment of title and evidence of the owner’s right to a given share in the property and franchises of the corporation, and is designed only to afford a steady investment for capital, not for circulation. These differences are not slight, and being founded in *385the nature of the two classes of instruments, are quite sufficient to destroy any analogy between them.

Judge Magrath is also of the opinion that a certificate of stock in the State Bank is a negotiable instrument, in consequence ol’ the section of the Act of Incorporation, which declares “that the stock of the bank shall be assignable aud transferable, according to such regulations as may be instituted in that behalf by the directors.” His argument is, “ that when the law gives the stock an assignable quality, and does not at the same time qualify the effect of such an assignment, it thereby makes it negotiable.”

The proposition of Judge Magrath in this part of his argument is, that if without qualification a statute affirm, in reference to a particular subject, the same qualities which the subject already possessed by the general or common law without the statute, the inference must be that other and different qualities must, by the force of the statute, be conferred, upon the subject, although the language used be an exacS legal definition or description of the qualities or capacities; possessed before the passing of the statute. If this be so,, iff a statute cannot *repeat*or *declare*the common law, without,, at the same time, making new law and different law from» that which it repeats or declares, there can be no such thingr as a “ declaratory or affirmative statute.”

But it has escaped Judge Magrath’s attention that there-is-in this section of the Act of Incorporation the very qualification which, in his own opinion, would make an exception, to even his own proposition. The stock was, as he says,.assignable at common law, and the statute says.that it should be assignable and transferable according to such regulations as the directors should institute. What is this but a qualification — a limitation of its assignability ? If, by law, it was assignable generally, and by the statute it was assignable as the directors may institute, surely this is a qualification of the assignability. Whatever regulations were instituted by the directors became incorporated into the statute, and had *386the same force and effect as if they had been specially designated. When, therefore, the directors said that the stock should be transferred only on the books of the bank, it was the same thing as if the statute had so regulated the assign-ability. The effect of the enactment was to declare that the stock, which by law was assignable generally, should be assignable only on the books of the bank. There can .be no doubt but that this was intended to be, not an extension, but a restraint upon the transferability of the stock. See the remarks of Chancellor Walworth, 22 Wend., 353, quoted in a former part of this argument.

It remains to discuss the position, that Madame Szemere, having invested Boldin as agent, with the power to sell, she is bound by the acts of his agency.

The Chancellor, on the 8th page of the circuit decree, assumes it as beyond dispute, that Boldin was the agent of Mons. and Mdme. Szemere, for the purpose of selling and disposing of the shares, and being thus authorized, he says that the breach of trust committed by him did “ not consist .in ,the act of selling, but in not accounting.” He also says, .that it is vain for Madame Szemere to say that Boldin was “not to sell under the power, but to transmit it toKuhtmann; if that be true, it was a secret arrangement between them, and not binding upon third parties.” These conclusions of the Chancellor could not be denied, if it were established as undoubtedly as he supposes that Boldin was Mdme.Szemere’s “agent to sell.” But this is far from being the case, for, against the fact of Boldin’s agency, the following propositions ,can be maintained;

1. That the power of attorney being in blank, and no consideration being paid to Mdme. Szemere by Boldin, the mere possession of the papers conferred no authority upon him to complete them by the insertion of his own name, or to convey a like authority to any one else by a simple transfer of the documents.

*387*2.*That even if he had authority to complete the papers, the power is to “transfer,” and not to “ sell.”

3. That even if he had the power to “sell,” his transactions with Messrs. Cox & Co. are, as the Chancellor has said, by way of hypothecation or pledge for his own indebtedness, and so not warranted by a power to sell.

4. That the paper in Boldin’s possession was, after all, only a power of attorney, not coupled with any interest, and so revocable at any moment before execution.

If either one of these propositions can be successfully maintained, the conclusion of the Chancellor that the instructions of Mdme. Szemere to Boldin to transmit the Certificate and. power to Kuhtmann are not binding upon third persons, and that Boldin’s breach of trust did not consist in the act of selling, but in not accounting, must fall to the ground.

As to the first proposition, that the power of attorney being in blank, and no consideration being paid to Mdme. Szeinere by Boldin, the mere possession of the papers conferred no-authority upon him to complete them by the insertion of his own name, or to convey a like authority to any one else by a simple transfer of the documents. No man can be bound by a contract which he has not been proved to have made. If a man execute a paper with blanks, before those blanks can be-filled, it must be proved how he has authorized that they should be filled. This rule is so strict, that in England it has been decided that the authority to fill up the blanks in a deed must be proved by an instrument as solemn as the deed itself, and that it cannot be done by parol. *Hobblewhite. vs. Mc-Morine,*6 M. & W., 200. In our State, the rule has been so far relaxed, as to permit the blanks in a deed to be filled -by parol authority; but still, some authority, beyond the mere possession of the papers, is necessary. *Gourdin vs. Commander Read,*6 Rich., 497. An exception has also been made to the rule in the instances of promissory notes and bills of exchange. See *Russell vs. Langstaff,*2 Doug., 514, and other cases which have followed that decision. But the: *388principle of these cases depends upon the character of the instruments. It is from their negotiability that the law raises a presumption not only of a consideration paid, and of ah intention of an uncontrolled circulation, but of an implied authority in furtherance of their design to fill up the blanks' which may be found in them. But this implication is confined to instruments of this description, and no case can be found which has decided that the holder of any other than a negotiable instrument is permitted to fill up blanks, unless he prove either express authority to do so, or a consideration paid by him to the maker of the instrument, from which authority may be equitably implied. This is piecisely the point which has been ruled in *Dunn vs. The Commercial Bank of Buffalo,*11 Barb., 581, and confirmed by *Coombs vs.*Hodge, 21 How., 398.

As to the second proposition, that even if Boldin had authority to complete the papers, the power is to “ transfer,” and not to “sell.” The word to “transfer” is not a syno-nyme with the word to “sell.” The difference in their signification is constantly recognized in business transactions. “To sell” involves the idea of bargain and negotiation, which is completed by the act of transfer. One refers to an act of contract, the other to the mere execution of the title.

If it needed anything to make it appear what “transfer” means in the present instance, it is to be found in the certificate which accompanied the power of attorney. In the certificate of stock it is a part of the stipulation that the shares are “ transferable only at the bank.” Here a definite and precise meaning is attached to the word transferable, and its interpretation limited to the act to be done at the bank. In the power of attorney, which was fastened by a wafer to this certificate, the same word, “transfer,” occurs. It is the only word occurring which directs what is to be done with the shares. Now, it is impossible to say that the same meaning should not be assigned to the same words in the different *389instruments; they must be similarly construed; they cannot be made to bear different meanings. “ Transfer,” in the .power, cannot mean to sell in London, or Paris, or anywhere —and “ transferable,” in the certificate, be confined, as it is by its context, to an act to be done only at the bank.

As to the third proposition, that even if he had power “ to sell,” his transactions with Messrs. Cox & Co., are, as the Chancellor has said, by way of hypothecation and pledge for his own indebtedness, and so not warranted by the power to sell.

Nothing can be clearer than this, that an agent to sell has no authority to pledge for his own debts. No point can be more fully sustained by authority. The case of *De Bou-chount vs. Goldsmid,*5 Ves. Jr., 210, is singularly similar in its circumstances, and will be sufficient. The plaintiff and his wife were entitled to one hundred and ninety-one shares in a London Assurance Company, and they executed a .power of attorney to Muilman & Co. to “ sell, assign and .transfer all or any of the said shares.” Muilman & Co., being indebted to the defendants, pledged to them a part of the shares belonging to the plaintiff, and a transfer was actu.ally made. Muilman & Co. failed, and the bill was brought for a re-transfer of the shares and an account of the dividends, upon the ground that an authority to sell did not per.mit a pledge of the agent for his own debt. The Lord Chancellor said: *“*It has been settled with regard to goods, and .there is no doubt that if goods are consigned to a factor to sell, he cannot pledge them. It must be a *bona fide*sale for valuable consideration. The defendants are certainly wrong in point of law. I take it not merely to be a principle of the law of England, but of the civil law, that if a person is acting *ex mandato,*those dealing with him must look to his mandate.”

The decree was, that the defendant re-transfer the stock, and pay the dividend and costs.

The fourth proposition is, that the power of attorney in Boldin’s possession not being coupled with an interest is *390revocable at any moment before execution. The shares are yet nntransferred on the books of the bank, and still stand in Madame Szemere’s name. Up to the point of transfer, Messrs. Cox & Co. took the shares at their peril. Before the transfer which the power authorized, Messrs. Cox & Co. have been informed of the revocation, and the power remains void in their hands.

*Memminger, De Saussure,*contra.

*Mitchell,*in reply.

The opinion of the Court was delivered by

Johnstone, J.

This case has been pressed upon the Court as if the transfer of the scrip by Boldin was made in the character of agent, and by way of pledge; whereas, upon a careful examination of the facts, the scrip was represented and accepted as Boldin’s own property: and it was a sale, and not a pledge. If the scrip was put into Boldin’s hands by Madame Szetnere uhder any restrictions, it was her duty to have proved what they were; but the otdy fact that bears on her transfer to him is, that she made a general delivery, with an indefinite power, in blank, before Mr. Consul Goodrich.

This, according to the general course of fair business, exhibited Boldin as the owner: and so ho acted. Indeed, it it appears that from that time he received the' dividends, which was further proof of ownership.

The only formality omitted was that of filling up the blanks, and the taking out new scrip.

It is well known that Courts of law as well as Courts of equity, recognize the title of a person who purchases a security in the course of a fair business, although it be not negotiable. If, for instance, a note payable to A, be transferred by him to B, the latter is recognized as legal holder of the paper, and although he may be obliged to use the name of *391A, in suing for the debt, A will not be allowed to release the action. That the security is liable, in the hands of B, to the equities between the *maker*and the original payee, may be conceded. That does not touch the point now under consideration, which exclusively concerns the property, the security itself, as between the original payee and one to whom he has transferred it without formal assignment. This morning the Chief delivers an opinion, in the case of *Salas vs. Cay,*that the assignment, comprehending not only tangible property but choses, enables the assignee to sue in his own name.

Whoever comes fairly by a security, as Cox did in this case, in the course of business, is entitled to hold it against him who passed it, or enabled another to pass it to him.

It has been argued that the inscription of Madame S.’s name in the scrip notified Cox of her right, so as to oblige him to enquire of her. But the plain authority was to transfer, which (no gratuity being reasonably intended) was a power to sell: and a sale was made. In a large proportion of cases, especially when such scrip is carried abroad, and considerable time has elapsed from the original issue, it has passed through many hands; so that the greater has been the efflux of time, the less reason has a buyer to suppose that the ownership remains in the original party, and the more insufficient is the guide for enquiry.

Boldin had been put in possession of this scrip, with an indefinite power of disposition, by Madame Szemere, and if he was not the owner (of which ownership there is much evidence) she exhibited him in a light which enabled him to lay claim to the stock. Under such circumstances, equity would not permit her to avail herself of the dry skeleton of title, which yet stands formally in her name, to defeat him whom she has contributed to deceive. The transfer should have been formally made; and this Court will not take notice of that as undone which ought to have been done. It *392will, in all formal matters, execute agreements in good faith, and as they, in fairness, should be carried out.

It is ordered, that the appeal be dismissed, and the decree affirmed.

Wardlaw, J., concurred.

O’Neall, C. J.,

dissenting, said: That the majority concede that the legal estate in the bank stock (fifty shares) is in Madame Szemere, the defendant. They hold, as I do, that the shares are not negotiable by delivery, or by any writing except that which operates to cause them to be transferred on the books of the bank. In this case, there has be.en no transfer on the books of the bank, and, of course, the shares remain in the name of Madame Szemere.

But, it is contended that, the other defendants, Hermann Cox & Co., who hold the scrip, and blank power of attorney, which they received from B.oldin, are, in equity, entitled to be reimbursed their advances out of the stock. This claim is no more than that they are entitled to hold the shares on hypothecation; and so the Chancellor’s decree allows.

If they had purchased, and could shew that Madame Sze-mere intended to sell, and placed the stock and power in Boldin’s hands for that purpose, then an equity would arise to perfect the sale. But there is no such proof. Boldin called the stock his own, and sold, or pledged it as such, to raise money for his own use. Not a dollar has been traced to Madame Szemere’s use. How an equity against her, under such circumstances, can arise, is what I cannot understand. These views are so fully sustained by the recent New York case, *The Mechanics Bank vs. The New York and New Haven Railroad Company,*13 N. Y. Reports, (3 Kernan) *599*to 641, that I may refer to the decision there for an answer to all the grounds assumed for Cox & Co.

So, too, I concur fully in the excellent argument of Mr. Recorder Pringle, and beg leave to refer to and adopt it, as fully illustrating the grounds on which I place my dissent.

*Appeal dismissed.*