fault or negligence on his (plaintiff's) part, had fallen into the same and was drowned therein. The demurrer to the complaint, which stated substantially these facts, was sustained in the court below, and the order reversed here. The decision was based upon the principle that one should so use his own property as not to injure the property of another. Of course this principle-which is a maxim of common justice as well as of law-does not create a liability for every injury one may sustain through the use by another of his own property; but where the latter is guilty of a breach of duty which he owes to others in the use of his property, whether by intention or neglect, he is liable for any injury which is occasioned thereby, if the injury is the natural or probable result of the act, and such as a prudent man, under the circumstances, acting with ordinary care, would have foreseen. Under such circumstances it is no defense that the property is used for a lawful purpose. The following cases illustrate the rule: Birge v. Gardner, 19 Conn. 507; 50 Am. Dec. 261; Durham v. Musselman, 2 Blackf. 96; 18 Am. Dec. 133; Railroad Co. v. Allen, 22 Kan. 286. The case at bar is similar to Sisk v. Crump, 112 Ind. 504, 2 Am. St. Rep. 213, where it was held that a barb-wire fence the strands of which were negligently suffered to sag down and hang loosely from the posts was not such a fence as a good husbandman would construct or maintain, and that the defendant was liable for injuries occasioned to plaintiff's horse while attempting to pass from the street into defendant's field. (See also Powers v. Harlow, 53 Mich. 507; Fink v. Furnace Co., 10 Mo. App. 69; Railroad Co. v. Hudson, 62 Ga. 680.) The court instructed the jury that the plaintiff could recover only one half of the damage sustained by the horses owned by him and Knight jointly. We think the instruction is correct; but whether correct or incorrect, the jury was bound by it. (Emerson v. County of Santa Clara, 40 Cal. 543.) The verdict and judgment were in favor of LXXIX. CAL-21 the plaintiff for $575 and costs. The evidence shows without conflict that the damage to the property owned jointly by Knight and the plaintiff was $390. Only four horses belonged to plaintiff individually. It is in evidence that two of these horses were damaged to the extent of seventyfive dollars. The other two of the four mentioned were a sorrel colt and a black mare, but plaintiff does not state the damage occasioned to these, or either of them. The witness Cady mentioned the sorrel colt, and estimated the damage to it to be thirty dollars. Assuming this to be the property. of plaintiff, the colt mentioned by plaintiff as his property, he would be entitled to recover the following sums only: One half of $390,-the damage to the joint property of Knight and himself, and the other sums mentioned, $75, and $30 damages to his individual property, or a total of $300. The amount involved is very small; and we desire, if possible, to avoid the expense and delay of a new trial. The cause is therefore remanded, with directions to the court below to enter an order requiring plaintiff, within such time as the court may fix, to file with the clerk a waiver of any greater sum than three hundred dollars, with interest thereon at seven per cent from the date of the judgment, together with the costs of the action, and directing that unless such waiver be filed within the time mentioned, a new trial will be granted. In case such waiver is filed, each party will pay one half the cost of this appeal, and the judgment and order will stand as they are. If the waiver be not filed, the court below will order a new trial. BEATTY, C. J., THORNTON, J., WORKS, J., SHARPSTEIN, J., and MOFARLAND, J., concurred. [No. 11629. Department Two.-May 29, 1889.] THOMAS JENNINGS, RESPONDENT, v. BANK OF CALIFORNIA, APPELLANT. EQUITABLE LIEN OF BANK ON SHARES OF ITS STOCK FOR ADVANCES TO STOCKHOLDER-CONDITION IN CERTIFICATE AND SUBSEQUENT DEALING WITH KNOWLEDGE THEREOF-IMPLIED CONTRACT.-The insertion in a certificate of stock of a bank of a provision that no transfer of the stock will be made upon the books until after the payment of all indebtedness due to the bank from the person in whose name the stock stands upon the books, and the subsequent borrowing of money by the stockholder, without anything to exclude the idea of security on the stock, creates an implied contract from which an equitable lien arises. ID.-BY-LAW-USAGE.-This does not depend upon the existence of a by-law or usage, but rests in contract. And the fact that there was no by-law, or that the bank had no power to make such a bylaw, and that there was no usage in regard to the matter, is immaterial. ID.-RESOLUTION OF DIRECTORS—AUTHORITY OF OFFICERS OF BAnk.— The officers who transact the ordinary business of a bank have authority to do all acts which are usual or incidental thereto. The officers who make loans have authority to arrange for security for the same. It is therefore immaterial that the condition was inserted in the certificate by the president, secretary, and cashier without a resolution of the board of directors. ID.-WAIVER.-There is nothing in the record to show that the advances were made on personal security alone, or on some other security without reference to the stock, and consequently there was no waiver. ID.-RIGHTS OF ASSIGNEE OF CERTIFICATE.-The person to whom the certificate was indorsed and delivered stands in no better position than his assignor. APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. The facts are stated in the opinion. Newlands, Allen & Herrin, for Appellant. Lloyd & Wood, for Respondent. HAYNE, C.-Action for damages for the refusal of the defendant to make a transfer upon its books of certain stock to the plaintiff; judgment for plaintiff; defendant appeals. The material facts are as follows: In 1879, one Bowman became the owner of certain stock in the bank; and this stock was transferred to him upon the books of the corporation. The certificate was as follows: "No. 131. This is to certify that A. W. Bowman of San Francisco is the proprietor of sixty-seven shares of the capital stock of the Bank of California, which is transferable only upon the books of the bank, personally or by attorney, upon the surrender of the certificate, after compli ance with the conditions printed on its back. "SAN FRANCISCO, October 21, 1879. "S. FRANKLIN, Secretary. "THOMAS BROWN, Cashier. The condition referred to in the body of the certificate was as follows: "No transfer of the stock described in this certificate will be made upon the books of the bank until after the payment of all indebtedness due the bank by the person in whose name the stock stands on the books of the bank, except with the written consent of the president or cashier." There was no by-law of the corporation or any resolution of the board of directors authorizing the insertion of such a condition in the certificate. But from the time of the organization of the bank, in 1864, such a condition was always inserted, although the bank had never refused to make transfer by reason of the indebtedness of a stockholder, except in the present instance. It does not appear, however, that occasion for such refusal had ever arisen. Bowman received the stock without objection. He was a depositor of the bank at the time; and on May 4, 1883, was indebted to the bank on overdrafts in upwards of eighty thousand dollars. On that day, he transferred his stock to the plaintiff for value, and indorsed and delivered the certificates to him. No notice of this trans fer was given to the bank until October 16, 1884, when the plaintiff demanded a transfer of the stock to him upon the books. In the mean time the bank continued to pay the quarter-yearly dividends to Bowman, and to lend him money on overdrafts. On October 13, 1884, notice of the transfer, This indebtedness was which was two days before the Bowman owed the bank $98,786. subsequently reduced to $30,394.75, which sum remains due. The bank refused to transfer the stock to the plaintiff upon its books until Bowman's indebtedness to it was discharged. 1. As between Bowman and the bank, we think that the latter had an equitable lien upon the stock, for the sum due to it. The counsel for the respondent makes several points in this regard. (a) It is argued that the terms upon which shares of stock may be transferred are prescribed by the statute, and that the corporation had no power to annex other conditions. So far as the power of corporate legislation is concerned, this may be conceded. And it may be assumed, for the purpose of the case, that a corporation could not make a by-law which would operate in and of itself to create a lien upon the stock for the indebtedness of the stockholder. But the power to legislate is one thing, and the power to contract is quite another. In the language of Angell: "What may be bad as a by-law against common right may be good as a contract, since a man may part with a common right voluntarily, of which it would be impolitic and unjust to deprive him by a by-law, passed without his assent, or perhaps knowledge, by those who might not know or would not consult his individual interests." (Angell on Corporations, 8th ed., sec. 342.) And to say, as is said by the learned counsel, that no additional limitation can be added by contract in a particular case, seems to us to be going altogether too far. No statute has been called to our attention which prohibits a corporation like the de |