complaint, which motion was duly argued, and decision reserved by the learned referee, the further hearing of the case being adjourned. Before a decision of this motion was reached, and in the month of November, 1896, the defendant, Lewis M. Jayne, died intestate, a resident of the county of Orange. Thereafter Frank H. Campbell was duly appointed administrator of the goods, chattels, and credits of the said Lewis M. Jayne, and subsequently motion papers were served on the attorney for said Jayne, but without notice of the administrator; and on or about the 1st day of May, 1897, and without any appearance upon the part of the attorney for the said Lewis M. Jayne, an order was made reviving the action, and substituting the said Frank H. Campbell as administrator, etc., in the place and stead of the said Lewis M. Jayne. The representatives of Mr. Jayne refused to recognize the validity of this order, resulting in subsequent proceedings, and the entry of an order of substitution of a like tenor; and, a motion having been made to set aside such order, and refused, an appeal was taken, which has not as yet been determined. The referee, after the denial of the motion to set aside the substitution of the said Frank H. Campbell, fixed a time and place for the further hearing of the case, and, upon the parties appearing, such proceedings were had as resulted in a submission of the issues arising therein to the said referee. In August, 1898, the referee rendered his decision, the judgment was perfected on the 19th day of December, 1898, and both parties are now before this court appealing from such judgment. After the appeals had been taken, and on the 8th day of October, 1899, Thomas J. Curtice, the original party plaintiff, died. Prior to his death Mr. Curtice assigned the cause of action set forth in the complaint to his niece, Josephine Aspell, the present plaintiff, who was duly brought into the case. Later Frank H. Campbell died, and Emma L. Campbell was given letters of administration de bonis non on the estate of Lewis M. Jayne, deceased, and an order was subsequently made reviving and continuing the action and the appeals herein, and substituting the said Emma L. Campbell, as administratrix de bonis non of the estate of Lewis M. Jayne, deceased, as sole defendant and appellant herein.

This, briefly, is the history of the devious ways through which this litigation has come down to us from the first half of the past century, and we are to inquire whether the evidence supports the conclusion that Lewis M. Jayne, the friend and committee of Thomas J. Curtice, nearly half a century ago, while the latter was confined as a lunatic, corruptly appropriated to himself the sum of $750, which belonged to the estate in his custody. The complaint alleges a conversion of certain bank notes, somewhat mutilated by fire, owing to the plaintiff's action while mentally unsound; the conversion of the profits, or the wrongful deprivation of the profits, to the plaintiff, on 130 shares of railroad stock, the amount of such wrongful transaction being placed at $5,785; and the conversion of $750 upon 100 shares of railroad stock. The referee refuses to find anything due to the plaintiff on either of the first alleged causes of action, and as to the third he admits that there is "no direct positive proof that the committee actually received the sum of $2,250 on the sale of the stock

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to his brother, but that was the market price of the stock at the time he made the sale, and upon the assumption that he acted honestly and in good faith it must follow that he did not make the sale for less than the stock was selling for in the market." But what is the evidence in support of the proposition that $2,250 was the market price of this 100 shares of Cleveland & Toledo Railroad stock at the time he made the sale to his brother? It is probably established by the evidence that the market price of this stock on the 14th day of April, 1862, was $45 per share, making $2,250 for the 100 shares, but the original defendant, in his sworn statement made on the 17th day of March, 1863, says that this sale was made on the 19th day of December, 1861, at which time it is conceded that the stock was worth only $30 per share, or $1,500 for the 100 shares; and this amount, with the interest, was accounted for to Mr. Curtice on the 8th day of June following, at which time Mr. Curtice admits that the matter was specially called to his attention, and that Mr. Jayne told him the stock was low at the time of the sale. It should be remembered that at the time this sworn statement was made Mr. Jayne knew that Mr. Curtice was regaining his mental equilibrium, and that he was likely at any time to be restored to his estate, and to be put into position where he could inquire into the fidelity of his committee; for we find him, in an affidavit in support of Mr. Curtice's petition to be relieved of the commission in lunacy, saying, under date of May 30, 1863, that "the said Thomas J. Curtice has been fully restored to a sound mind and understanding, and has become and is fully competent to manage himself, and take charge of his business and affairs, as deponent verily believes from the conduct and conversation of the said Curtice," and that "the said Curtice has been in such state of soundness of mind since the month of January last past; that deponent has since the period last mentioned been a great deal in the society of the said Curtice, and made a very careful observation of the condition of his mind, and that deponent has not seen, since the time last mentioned, any symptoms of mental derangement." To the same effect is the affidavit of Dr. Jayne, a brother of the committeę, who was the purchaser of the stock; and, leaving out of the consideration. all of the legal presumptions, is it reasonable to suppose that a man of good standing, who was able to give a bond for $25,000, would make a false statement of his account at a time when he knew that his ward was in a sound state of mind, likely at any time to be at liberty, and that he would, with his brother, take an active part in restoring his ward to the custody and control of his property, if there was a consciousness on his part of having done a wrongful or illegal act? The evidence relied upon by the learned referee in support of the proposition that the sale was made when the stock was worth $2,250 is found in the date of the assignment of the stock certificate. "I am convinced by the evidence given," says the learned referee in an opinion handed down, "that this stock was sold in April, 1862, and that the entry of the sale as made in the account of the committee was not truthful;" thus practically convicting the original defendant (hereafter for convenience and brevity referred to as the "defendant") of a crime, and the reason for this conviction is given that

this is substantially shown by the written transfer on the back of the certificate bearing that date. The assignment does not have the appearance of having been executed in blank, so that it might pass by delivery from one to another, as is claimed by the learned counsel for the defendant; on the contrary, it seems to have been entirely completed with the same ink, and at the same time. Assuming this to be the case, we are unable to agree with the learned referee that this is sufficient evidence to support the conclusion that the defendant committed a crime by a falsification of his books and the making of a false report under oath in respect to the property under his control. The defendant sold this stock to his brother, and the referee goes out of his way to say that "there is no evidence of a fraudulent scheme on the part of the committee, nor of any corrupt agreement or unstanding between him and his brother, to whom he made the sale, by which the committee was to profit by the sale, and no evidence to indicate an intention on his part to aid the purchaser through a fraudulent transfer of the stock." It is entirely consistent with common experience that in dealings of this character the property purchased is not always delivered immediately. The parties lived in a small rural community, and, while the stock certificate was nominally in the possession of the defendant at the time of the alleged sale, it is by no means certain that it was not actually on deposit in the city of New York, or some other point, for safe-keeping; and if the defendant's brother purchased the stock on the 19th day of December, relying upon his brother to deliver the same upon demand, there is no reason why the certificate might not have been dated on the 14th day of April, 1862, and yet the statement made in the report, and which constituted the basis of settlement, be entirely true, both in letter and in spirit. This theory of the matter is entirely consistent with the claim of the defendant, testified to by Mr. Rowe, the attorney for Mr. Curtice, that he made a written agreement with his brother for the sale of the stock on the 19th of December, 1861. In answer to the question, "He didn't admit that it was true that he sold the stock in April?" Mr. Rowe says, "No, sir; he admitted that he sold it in December, and that it was delivered or transferred in April.” It is a coincidence of some importance in the consideration of the good faith of this transaction that the date of the transfer of this certificate is the date of the annual accounting. The estate of Mr. Curtice came into the control of Mr. Jayne on the 14th day of April, 1853, and all of the several annual reports are made as of the anniversary of that date, so that the report for the year 1862 bears date of April 14th; and it may well be that in charging himself with the interest upon the amount of the proceeds of the railroad stock from the 19th of December to the 14th of April, 1862, the matter of the transfer was brought to the mind of the committee, and the certificate was filled in as of that date. This would close the transaction for the year; and the very fact that it is dated on this day, when, under the law in this state, it is neither necessary to date nor to fill in the blanks in order to convey a full legal and equitable title to the stock (McNeil v. Bank, 46 N. Y. 325, 330, 331, 7 Am. Rep. 341, and authorities there cited; Knox v. American Co., 148 N. Y. 441, 454, 42 N.

72 N.Y.S.-6

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E. 988, 31 L. R. A. 779, 51 Am. St. Rep. 700), shows a degree of frankness on the part of the defendant wholly inconsistent with the idea that he was engaged in a fraudulent enterprise against the estate of his ward. There are so many things which might have operated to delay the transfer, all of them consistent with absolute honesty, and the evidence is so devoid of any suggestion of collusion, or of any effort on the part of the defendant to cover up any of his transactions, that the case is fairly within the rule that, where the natural inference from the proofs made does not necessarily lead to the presumption of a fraudulent intent, but the evidence relied upon is equally as consistent with innocence as with wrongdoing, that construction must be placed upon it which will exonerate the party implicated from a dishonest intent. Constant v. University, 133 Ñ. Y. 640, 648, 31 N. E. 26, and authorities there cited; Crook v. Rindskopf, 105 N. Y. 476, 485, 12 N. E. 174, and authorities there cited; Bernheimer v. Rindskopf, 116 N. Y. 428, 436, 22 N. E. 1074, 15 Am. St. Rep. 414; Roberts v. Buckley, 145 N. Y. 215, 224, 39 N. E. 966, and authorities cited. The important question to be determined, and upon which must stand or fall the cause of action asserted by the plaintiff, is not when the transfer of the physical possession of the stock certificate was made, but when the sale was made, and the money paid over to the committee. If Dr. Jayne purchased this stock on the 19th day of December, 1861, and the money was paid over to the committee on that date, he became the equitable owner of the stock, and the question of what particular time this equitable title was transformed into a legal title is of no possible consequence in this case. The certificate, with the date of its assignment, carries with it the legal presumption that it was transferred upon that date (1 Rice, Ev. §§ 56, 152a, 152b), but it raises no presumption that the consideration was paid at the time of the transfer which can overcome the presumption of innocence on the part of the defendant (Id. p. 96, $59,-where the rule is laid down that, where there are conflicting presumptions, the presumption of innocence will prevail against the presumption of the continuance of life; the presumption of the continuance of things generally; the presumption of marriage, and the presumption of chastity); and there is absolutely no evidence in the case to dispute the repeated assertions of the defendant under oath and in his general conversations, which are found in evidence, that the sale was made upon the 19th day of December. The defendant's books show this. He charges himself with interest from this date. He stated this fact in his sworn report in March, 1863. He stated it in his settlement with the original plaintiff in the same year. He made the same statement to Mr. Rowe. He denied the allegations of the complaint upon this point under oath, and on no occasion did he admit that there was anything false or misleading in his accounts. The evidence remains absolutely undisputed that the sale was made on the 19th day of December, 1861, and that the proceeds of such sale came into the hands of the defendant, as committee of Mr. Curtice, on that day, and that the estate has had the benefit of that fund from that date to the present time. The only fact which in any manner weakens this defense is that the certificate of stock was not phys

ically transferred to the purchaser until the 14th day of April, and the possible inference that the money was paid at the time of the transfer. This inference is overcome by the uncontroverted testimony of the sworn statement and the presumption that the defendant did not commit a crime. It is a well-established rule that fraud cannot be presumed; it must be proven; and, if there is left room for the inference of an honest intent, the proof of fraud is wanting. Bernheimer v. Rindskopf, 116 N. Y. 428, 436, 22 N. E. 1074, 15 Am. St. Rep. 414, and authorities there cited. Room must be allowed for honest mistakes, and possibly, even, for careless and thoughtless error (Roberts v. Buckley, 145 N. Y. 215, 224, 39 N. E. 966, and authorities cited), and at most this seems to have been the extent of the defendant's offending. If there is any doubt as to whether the sale was made in the manner and at the time stated by the defendant in his sworn report, and which is nowhere disputed except by an inference, the presumption of innocence should prevail. Shultz v. Hoagland, 85 N. Y. 464, 472. The defendant is presumed to have done his duty (Cahill v. Hilton, 106 N. Y. 512, 517, 13 N. E. 339; Forbell v. Denton, 53 App. Div. 402, 406, 65 N. Y. Supp. 1120, and authority there cited), and, the evidence being capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascribed to it which accords with his innocence, rather than that which imputes to him a criminal intent (Morris v. Talcott, 96 N. Y. 100, 107). When we consider that the plaintiff has had the advantage of all of the testimony of Mr. Curtice without an opportunity for explanation or repudiation by the original defendant, who died while the case was being tried, and that the evidence thus brought before the referee does not reach the fair requirements in an action depending upon fraud as the basis of recovery, it will not be doubted that it is the duty of this court to reverse the judgment. This conclusion is reached without taking into consideration the fact that all of the matters alleged in the complaint were called to the attention of Mr. Curtice at the time of the settlement in 1863, and it is rather late in the day to ask for the interposition of a court of equity. If there were any suspicious circumstances, they were present in 1863. The original plaintiff knew that stocks had been advancing in nominal price under the stimulus of an inflated currency. He knew that he had stocks. He knew that they had been sold, and he knew that they brought a less price than the market figures which were prevailing at the time of the settlement. It would not be a harsh rule if the courts at this late day should refuse to give aid to a claim which has no better foundation, and which might, in the exercise of reasonable diligence, have been developed at a time when the evidence to establish the facts was within the reach of both parties. The referee says: "I do not regard the payments which were made in 1887, 1892-93, nor the receipts for the money paid, which were executed by the plaintiff at that time, of any binding force as a recognition or revival of the plaintiff's claim, nor as a compromise or accord and satisfaction. Those transactions were of an informal and indefinite character,”— and in this we are in accord. The defendant at the time of these