Cornick v. Richards. culiar kind of property, we should look to the nature of the property, the uses to which it is put in the transaction of the business of the country, and at the same time not be unmindful of the established habits of dealings with the same among business men, this last should have an influence in this question of full weight, because we may be assured that what has been universally agreed on and established as the custom of such merchants, is the result of a felt need that has been met by the keenest practical sagacity dealing with the question. It is true our State is comparatively an agricultural one, but still in our business centers this species of property is as much used in the transactions of the market as in any other State, in proportion to the amount of such property held by our citizens. In addition, we must not forget that we are laying down a rule not alone for to-day, but for the future, with all its development of our resources, agricultural, mining and manufacturing, and this development must inevitably bring an immense commerce in the handling of its products. We know, as a matter of well accredited current history, that stocks are used every day in the transactions of our business men as collaterals, as well as sold, and that the universal practice is to transfer or assign the certificate of the stock with a power of attorney in blank to be filled up, authorizing a transfer by the corporation on its books to the purchaser on the presentation of which power, properly authenticated, the corporation transfers the stock to the purchaser or Cornick v. Richards. holder, and when the sale is absolute it is usual to issue new certificates to the the party, taking up the old. Such a practice facilitates the easy use of this property in commercial transactions. The requirement that the title could alone be transferred on the books of the corporation, or by notice to the corporation, would greatly tend to trammel this use, and, as far as we can see, notice to the corporation can serve no practical end, and has no appropriate place in the transaction, so far as passing the title from a holder to a purchaser, or the right of a creditor as purchaser, for he can, as he will always do, protect himself by requiring an assignment of the certificate, and then a transfer on the books of the corporation. The to a rule requiring transfer on the books of the corporation can only serve to give a creditor who has a judgment or attachment a legal advantage who has never given credit on the faith of the stocks, over the other who has advanced his money on them and taken the evidence of his security by a transfer of the certificate. In such cases alone will the contest be likely to arise, as the party who intends to trust to the security of such property will always take the assignment. In such a contest the equities are altogether in favor of the assignee who has advanced his money on the faith of the collaterals. The well settled rule of law as to symbolic delivery of the representative of the thing sold is in accord with the views maintained in the above opinion. Indorsement of a bill of lading is held a good delivery in performance of a contract of sale, so as to Cornick v. Richards. defeat any action by the buyer against the vendor for non-delivery of the goods. See cases cited, Watts Act. & Def., vol. 5, 578, Assignment of warehouse receipts and a gin receipt for cotton to be ginned and baled, was held in Arkansas to pass title to the cotton free from the landlord's lien for rent. Ibid and cases. The reason of the rule is given by the Supreme Court of Illinois in the case of Broadwell v. Hurard, 77 Ill., 305, cited by Wait as above, that "usage has made the possession of such documents equivalent to the possession of the property itself." The case is much stronger in favor of the certificate of stocks where they are the sole representative of the property held by the owner, and where the property has no substantial existence, and therefore is incapable of manual delivery. We believe, in popular and commercial language, when stocks are spoken of, this certificate is what is always referred to, and this certificate the universally accredited evidence of the ownership of such property. A holding that would overturn all this should only be made, for the most imperative reasons, or in obedience to a statute enacted by the law making power of the State. It is proper to add that as a matter of course we do not hold these certificates negotiable, or that any of the incidents of such character goes with them by assignment, so that the assignee must take subject to previous equities as any other assignee standing in the shoes of his assignor. We only hold that the title passes and is completely transferred, whether in case of collaterals or an absolute sale, so that a creditor who has fixed no liens Cornick v. Richards. on it before cannot appropriate it to his debt and override the title of the purchaser who has, in good faith, obtained a regular assignment of the certificate of stock under a valid contract between himself and the owner. The above conclusion will serve to guide counsel in drawing the decree in this case, as the date of levies will fix the priorities of the parties respectively. The case of the assumed transfer of stock to Mr. Washburn presents another question. The facts are as stated in his answer and an agreement, that before filing some of the bills, the precise time not necessary to be shown, Richards assigned two certificates of shares of stock of considerable amount to Washburn, Washburn agreeing to furnish Richards a certain sum of money, or rather to pay the same for his benefit. It is also admitted that he has not advanced any money on said shares of stock. It amounts only to this, Washburn agreed with Richards to advance certain money-how much is not shown-for his benefit, and the stock was assigned to him as security when this was done. Not having done so, nor even, as far as we can see, contracted any liability to any third party on the faith of this stock, we do not see how he can claim as against creditors of Richards, or even against Richards himself, to hold the certificates. The contract has not been completed so as to fix his right, and he holds the stock simply as a volunteer, liable to the attaching creditor so far as he is concerned. His right was to accrue when the money was advanced. Cornick v. Richards. It was a contract for a security on a contingency that has not occurred. The cost as between Cornick and the Iron Company, of filing his bill, will be paid two-thirds by the company, one-third out of the fund. The costs of the other creditors appropriating the fund to their debts will be paid out of the fund arising from sale. A decree will be drawn in accord with this opinion. MCFARLAND, J., delivered the following dissenting opinion: It is not my purpose to enter into a full discussion of the question involved in these causes, but in view of the fact that the question is unsettled in this State, and of the first importance, I deem it not improper to state briefly my conclusions. It is important that we adopt rules in regard to the transfer of stocks as near in accord with the rules generally prevailing in this country as we can consistently with such positive enactments as our own Legislature has adopted, so as to place stocks in our incorporated companies as near as possible upon a like footing with others in the general stock markets. Upon questions of this character general uniformity is desirable, though often not attainable. By our statutes the officers of the corporation are required to keep stock books, which shall show the names of the stockholders and the stock owned by them, and make the proper entries showing the transfer of stock. These books are open to the inspection applying, although the corporation be of any one |