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that the scheme was inconsistent with law, and con- ing per stirpes, and not per capita," The ninth item trary to the public policy of the State: and if it did named the propounders as his executors, directed not render the whole paper void as a will, it did so at them to prove his will in solemn form, and to turn least as to the items or portions in favor of Amanda over to said Amanda all tbe property given her for and her children, because of its tendency to promote life, and requested them to see to it while they live illegal and immoral intercourse between Amanda and "that Amanda A. Dickson and her children are proher alleged paramour, the said Eubauks, such inter tected in their person and their property, under the course being destructive and subversive of the welfare laws, so far as they may be able to do 80;" and gave and interests of society.
each of the executors $2,500 in lieu of commissions. The items of the will bearing upon these questions 1. We shall consider, first, whether this will, in the are the following: Item 4. “I give, bequeath and de various items mentioned above, and according to its vise io Julian H. Dickson and Charles G. Dickson, scheme, and the proof had upon that subject, can be minor children of Amanda A. Dickson, and the natu deemed contrary to public policy and void, and ral sons of my deceased friend, Charles H. Eubanks, whether that question was clearly and properly suband to the survivor of them, in case either should die mitted to the jury under the charge of the court and leaving no child or children, or representatives or rep. the testimony in the case. To do so intelligently, it will resentors of a deceased child or children, the two be necessary to state accurately the several charges of tracts of land in Hancock county * * * (describ the court upon that subject, to which the caveators, ing), adjoining the land of Baxter, the Alexander excepted, and these will be found in the eighteenth, place now occupied by said children and others, con twenty-second, twenty-fourth, twenty-fifth and twentaining in all five hundred acres, more or less. I ap ty-eighth grounds of the motion for a new trial, which point Amanda A. Dickson, the mother of said chil are as follows: "(18) The court erred in charging the dren, the testamentary guardian of the property given jury, at request of counsel for the propounders, as to her children by this item of my will, and my execu. follows: There is no public policy in Georgia which tors are directed to turn orer said property to her as prevents colored persons from taking property under such guardian, to be managed by her for them till a will,' without more, and without coupling to that they, or either of them, marry or come of age, at the consideration of illicit intercourse, which may have which time, as the case may be, said property may be produced said will." “ (22) At request of counsel for divided, share and share alike. If both of said chil caveators the court charged the jury, that “If Amanda dren should die before marriage or attaining lawful was the bastard child of Darid Dickson, begotten in age, leaving no child or children, or the representa this State, of a negro slave, prior to the late emancitive of a deceased child surviving, then the property pation, he was under no obligation to support or proin this item shall go to Amanda A. Dickson, their vide for such child prior to such emancipation, except mother.” Item 7. “I give, bequeath and devise all as a slave, if his slave, but then only wbile she was his the rest and residue of my estate, not expressly dis slave;' and was further requested in writing to posed of by this will otherwise, as well all I now own, charge: 'No obligation was upon David Dickson, if as all I may hereafter accumulate up to the he so begot said slave, to support or provide for her time of my decease, including lauds, live-stock, farm- after emancipation, or if such obligation existed, it ing implements, crops ou band and crops growing, ceased upon her becoming twenty-one years old,' and railroad stock, bonds, notes, accounts, and every thing the court so charged, leaving out the words, or if any else of value I may own at my death, to Amanda A. such obligation existed, it ceased upon,' and inserting Dickson, of Hancock county, now living with her and' after emancipation, and then refused to charge, mother near my plantation, for aud during her patu as requested in writing: 'If this will was made after ral life, free clear and exempt from the marital rights, such majority, and Amanda was such bastard of this power, control or custody of any husband she may testator, the parts giving this property to her are void, have, with full power to her, the said Amanda A.
because contrary to public policy.' The refusal of this Dicksou, without the aid or the interposition of any request was error." "(24) The court erred, in refuscourt, to sell said property, and convey the same, and ing to charge, as requested in writing by the counsel to reinvest the proceeds of said sales in other prop for the caveators: *If the jury believe from the evierty, or in good security, to be held by her for her life dence that this will sought to be propounded is couas aforesaid. I charge the property bequeathed by | trary to the policy of the State of Georgia,tben the jury this item of my will with the support and education would be authorized to find against the will.'" “ (25) of the children of the said Amanda A. Dickson, as The court erred in refusing to charge as follows: ‘Unwell those hereafter to be born as those now living; , der the Constitution and laws of the State of Georgia, their support to be ample, but not extravagant; their marriages between white persons and negroes are foreducation to be the best that can be procured for them bidden, and the public policy of the State is against with a proper regard for economy; all of which I leave the mingling of the blood of these races, and if you to the sound judgment and discretion of the said believe that this will is against said policy, it is absoAmanda A. Dickson, without any interference from | lutely void,' though requested in writing by counsel any quarter. As either of the children of the said for the caveators." “(28) The court erred in concludAmanda A. Dickson, born or to be born to her, come ivg bis charge as follows: 'Every man in this State of age or marry, I direct her to set off to such child so has a right to will his property to whom he pleases. marrying or coming of age a portion of said property, There is no policy of the State which would make it she to determine, in her unlimited discretion, what unlawful or contrary to such policy for a man to will property and how much shall be set off, with only this his property to a colored person, to any bastard, or to instruction, that the amount must not be so great as his own bastard, and such considerations as these to defeat or imperil my purpose to provide for her would not alone authorize a will to be set aside, but during life, and for her children, as well those to be born you may consider all the facts, relationships and cirhereafter as those now in life. Upon the death of the cumstances in evidence in deciding the questions said Amanda A. Dickson, I give, bequeath and devise | made before you, which I have already stated and exwhat may remain of the property embraced in this plained to you.' It was error in the conclusion thus item of my will to the children of the said Amanda i to group and state the facts touching the case; thus to A. Dickson and the representatives of any deceased use the words set aside in the statement of the abchild, share and share alike, such representatives tak- sence of a policy as to a testator's bastard, without re
gard to whether he owed any legal obligation to such policy, and cousequently void ; and this conclusion is bastard, and because it did not sufficiently emphasize drawn from the probibition of marriage between these that matter of illegal cobabitation."
races, as found in our Constitution and laws. Illicit It will be remarked that this will makes no provis intercourse between persous of the same as well as ion for Julia, who it is alleged, was the concubine of different races is made penal by our Code, as also inthe testator; that there was no preteuse of marriage tercourse between persons standing in near relations between Eubanks and Amanda, and that there is no of consanguinity or affinity to each other, whether that direct evidence going to establish the fact tbat the in- intercourse took place in consequence of probibited tercourse between Amanda and Eubanks took place marriage or otherwise. It is well settled that a white and was carried on in consequence of any previous man may be guilty of fornication or adultery with a agreement or promise on the testator's part to make colored woman, and vice versa ; and that a white or provision for Amanda and the children born in con- colored man, if a child is begotten in consequence of sequence of that intercourse. The will was made after such illicit intercourse, may be held liable for bastbat intercourse had ceased, and after the death of tardy. Allen v. Harris, 40 Ga. 220. Indeed there is Eubauks. It was not seriously insisted that past co- no difference in this respect between the rights and habitation would render a gift by the party holding liabilities of the different races. The fourteenth such a relation to a woman, void or illegal, and had amendment of the Constitution of the United States it been so contended, the argument could have rested | provides in express terms that “all persons born or upou no legal principle whatever. Indeed from a very naturalized in the United States, and subject to the early period the law has been well settled to the con jurisdiction thereof, are citizens of the United States trary. Vide Beall v. Beall, 8 Ga. 224; Hargroves v. and of the State wherein they reside. No State shall Freeman, 12 id. 312; Davis v. Moody, 15 id. 175. A make or enforce any law which shall abridge the contract to make compensation for the injury done in privileges or immunities of citizens of the United consequence of past illegal cobabitation, which con States, nor shall any State deprive any person of life, taived no stipulation for future intercourse, has been liberty or property, without due process of law, vor held to be valid; and even where such a contract had deny to any person within its jurisdiction the equal been fully executed, and the intercourse was kept up protection of the laws." The Supreme Court of the afterward, yet if it did not appear that the subsequent United States has decided that this amendment made cohabitation was made a stipulation in the contract, all colored persons born in the United States, and it has been maintained; where there was no evidence subject to its jurisdiction, citizens of the United of any promise or understanding, other than that in States and of the States in which they reside. Slaughferred from the fact of future illicit intercourse be- | ter-House cases, 16 Wall. 90, 95, 97; Bradwell v. State, tween the parties, this did not affect the validity of id. 130; Murdock v. Memphis, 20 id. 615; Walker y. the transaction. Thus where a bond had been given Sauvinet, 92 U. S. 90; Munroe v. Phillips, 64 Ga. 32. in consideration of past cohabitation, without any ex Under the Constitution of Georgia (section 5017 of the press stipulation to that effect, or without evidence Code), “ all citizens of the United States, resident in from which it could be shown that the future cohabi this State, are hereby declared citizens of this State;" tation of the parties was one of its conditions, and it is made the duty of the General Assembly to although in fact they subsequently so cohabited, it enact such laws as will protect them in the full en. was held that the bond was nevertheless valid, and joyment of the rights, privileges and immunities due upon it an action could be maintained. Chit. Cont. to such citizenship. And to this effect is section 44 979; Trovinyer v. McBurney, 5 Cow. 253; Gray v. of the Code. All distinctions as to the rights pertainMatthias, 5 Ves. 286; Hull v. Palmer, 3 Hare, 532; ing to citizenship between the two races are abolished Brown v. Kinsey, 81 N. C. 245; Greenb. Pub. Pol. 204-by this legislation and by these constitutional provis207, both inclusive, and other citations in the notes ions. As to their civil rights they stand upon the thereto; Gay v. Parpart, 106 U. S. 679. "The test," same footing. says Dillard, J., in delivering the opinion in Broun v. It follows therefore that whatever rights and priviKinsey, “always is, does it appear by the contract leges belong to a white concubine, or to a bastard itself, or was there any understanding of the parties, white womau and her children, under the laws of though not expressed, that the intercourse was to con Georgia, belong also to a colored woman and her chiltinue?''
dren, and that the rights of each race are controlled Neither at the testator's death nor when the will and governed by the same enactments or principles of was executed could a continuance of the relations be law. Among the rights of citizens of this State, elutween Eubanks and Amanda have been contemplated, merated in section 1654 of the Code, are the right to for as before remarked, Eubanks was then dead. the acquisition and enjoyment of private property, There is absolutely nothing in the case to show that aud the disposition thereof, the right to vote, hold ofthe testator, as contended by the caveators, had knowl. fice, eto. It is unquestionably true that the testator, edge of any illicit intercourse between Worthen, one by his will, may make any disposition of his property of his executors, and Amanda subsequent to Eubank's not inconsistent with the laws or contrary to the pola death. The circumstances in proof warrant no such icy of the State. Code, $ 2399. And this accords with inference, and nothing beyond vague suspicion or the general law upon this subject. Most persons in mere conjecture could impute to him knowledge of modern times, by that law, are deemed capable of the fact, or of a purpose on bis part, to make provision | taking under wills, and the exceptions as to those with a view to the creation of such a relation between who are incapable of taking are carefully enumerated, these last named parties. One thing is certain, that and rests generally upon grounds of public policy. there was no offspring from the intercourse during Upon these grounds alien enemies are excluded from the life of the testator, nor is there a single fact in benefits under wills, and so are others whose partici
rge him with kuowledge of it, or to show | pation in such benefits could in any sense of the word that he in any way encouraged or promoted it. His be called immoral; if a will makes a devise or bequest will certainly made no provision for the carrying on to further or carry into effect some illegal purpose of such interconse, or for the maintenance and sup- which the law regards as subversive of sound policy port of any offspring that might result therefrom. and good morals, such devise or bequest will be held
The principal complaint here is that any thing which void, and the executor would not be justified in payhas a tendency to induce intercourse between persous ing it. of the white and negro races is contrary to public The conditions of a testamentary gift tending to
separation or divorce between husband and wife limited is strongly upheld and rigidly enforced by the would be treated as void, and to the same general whole court. Each of the justices presiding in that principles of good morals aud sound policy may be re- case delivered separate opinions, though they all conferred various miscellaneous restraints upon testa curred in the result. Best, C. J., says: “We have mentary disposition which local law sees fit to euforce. heard much of this being a contravention of public Thus under the Louisiana Code, a will made in favor policy, and that ou that ground it cannot be supof the testator's concubine is treated as null and void. | ported. I am not much disposed to yield to arguGibson v. Dooley, 32 La. Ann. 959. Doubtless the local ments of public policy; I thiuk the courts of Westconception of public policy on such points is liable, in | minster Hall (speaking with deference, as an humble different jurisdictions and at different times and dif individual like myself ought to speak, of the judgferent epochs, to great variations. Decisions must ments of those who have gone before me) have gone greatly vary in consequence. Schouler Wills, SS 22, 23. much further than they were warranted in going in
There is nothing in the law of Georgia that we have questions of policy; they have taken on themselves seen inhibiting compensation for past illegal cohabi sometimes to decide doubtful questions of policy, and tation being made by a white man to a white woman, they are always in danger of so doing, because courts and under the law as it now stands there can be noth of law look only at the particular case, and have not ing to prevent its being made by such white man to the means of bringing before them all those considerahis colored paramour. No arrangement for future tions which ought to enter into the judgments of cohabitation with a black or white woman would be those who decide on questions of policy. I therefore valid, in favor of the woman or any party deriving a / say, it is not a doubtful matter of policy that will de. benefit from it. There is nothing in our law probib cide this, or that will prevent the party from recoveriting a putative father from making provision for his ing; if once you bring it to that, the plaintiff is entiillegitimate child or for the illegitimate offspring of tled to recover, and let that doubtful question of polsuch child. And even conviction of treason or felony | icy be settled by tbat high tribunal, namely, the Legor any lower grade of crime works no corruption of islature, which has the means of bringing before it all blood or forfeiture of estate. Bill of Rights, $ 2, par. 3; the considerations that bear on the question, and can Code, $ 5020. So that a felon or his offspring may settle it on its true and broad principles, I admit take testamentary benefits under the law of this that if it can be clearly put upon the contravention country. No one would contend for a single moment of public policy, the plaintiff cannot succeed, but it that a contract, agreement or understanding, founded must be unquestionable: there must be no doubt. upon a consideration, in whole or in part, for the com- | Looking at all the facts of this case, I can see no unmencement or continuance of meretricious intercourse questioned principle of policy that stands in the way between the sexes, would not be directly contrary to of the plaintiff to prevent him recovering in this aclaw or public policy and the best interests of society. tion.” Criticising and explaining two cases (Card v.
What is public policy? And where must we look to Hope, 2 Barn. & C. 661, and Blatchford v. Preston, 8 find it? And in ascertaining and applying it to the Term R. 89) which were relied on as opposed to this transactions of life, by what rules and precautions rule, the learned chief justice admits that in one of are the courts to be guided? On this latter topic, it the cases there are expressions used by Chief Justice is manifest from many decisions that judicial tribu
from many decisions that judicial tribu- Abbott which seem to bear upon the present case. nals hold themselves bound to the observance of rules “But," he says, “the expressions of every judge of extreme caution when invoked to declare a trans must be taken with reference to the case on which he action void on grounds of public policy, and prejudice decides, otherwise the law will get into extreme conto the public interest must clearly appear before a fusion. That is what we are to look at in all cases. court would be warranted in pronouncing the trans The manner in which he is arguing is not the thing: action void on this account.
it is the principle he is deciding. If ever I could have In Richmond v. Railroad Co., 26 Iowa, 190, 202, it is imagined it could have extended to such a case as this said that “the power of courts to declare a contract I would have protested against, though I could not void for being in contravention of sound public pol. have prevented, the decision. I would in my place icy is a very delicate and undefined power, and like have protested against it, for I should have seen the the power to declare a statute unconstitutional, injustice and confusion to which such a doctrine should be exercised only in cases free from doubt.” would have been liable to be extended. I am quite After laying down in terms somewhat different the satisfied that uot one of the learned judges who desame general rule, it was said by Howe, J., of the cided that case ever conceived that its authority could Supreme Court of Wisconsin, in pronouncing the be pressed to the extent to which it has been pressed judgment of the court in Kellogg v. Larkin, 56 Am. ) in this case." His colleague, Park, J., refers to those Dec. 164, 168: “He is the safest magistrate who is cases for the principles they determine, and not for more watchful over the rights of the individual than their facts. He concurs, as far as necessary in the reover the convenieuce of the public; as that is the best spective judgment rendered in them, and says: “The government which guards piore vigilantly the freedom judgment given by my Lord Chief Justice Abbott was of the subject than the rights of the State." So in very elaborate, but though I concur in the judgment Swann v. Swann, recently determined in the United in that case, I am by no means prepared to agree with States Circuit Court for the Eastern District of Ar every dictum in that judgment. I am quite satisfied kansas (21 Fed. Rep. 299) it was said by Caldwell, J., that the reference to the general policy in that case delivering the opinion: “No court ought to refuse its by Lord Chief Justice Abbott was going further than aid to enforce a contract on doubtful or uncertain was absolutely necessary, and I think there is nothgrounds. The burden is on the defendant to show ing here to show illegality.” Sir James Burrough, that its enforcement would be in violation of the set- the other judge, said: “The next point is that it is tled public policy of the State, or injurious to the illegal. I am of the opinion that on the face of this morals of its people. Vague surmises and flippant count there is no illegality. If it be illegal, it must be assertions as to what is the public policy of the State, illegal either on the ground that it is against public or what would be shooking to the moral sense of its policy or against some particular law. 1, for one, people, are not to be indulged in.".
protest, as my lord has done, against arguing too In the leading case of Richardson v. Mellish, 2 Bing. strongly on public policy; it is a very unruly horse, 229 (9 E. C. L. 557), the observance of the rule as thus and when you once get astride it, you never kuow
where it will carry you. It may lead you from the resort to be valid in law, and to have all the force and sound law. It is never argued at all but when other efficacy which the law can impart to any contract. points fail.” Further on in his opinion he says: “As No doctrine more subversive of law and of private to the point of public policy a great deal has been and public rights could have been devised. In fact it said, many cases have been mentioned, and in Blutch sets them afloat upon public sentiment, to fluctuate ford v. Preston a great number of general phrases and rise and fall with the ebb and flow of popular is made use of by the learned judge. But you ought opinion, and wheu brought to trial, to succeed or fail, not to govern courts of justice by general expressions not according to the established rules of law, but upon used in the administration of the law. They may the belief, the private opinions, or in otber words, have some weight, but they ought not to govern; you the whims and caprices of the juries before whom must look to what the point of decision was.”
they were presented. The most sacred rights, those In Walsh v. Fussell, 6 Bing, 169 (19 E. C. L. 83), Lord most cherished by the law, might be frustrated and Chief Justice Tindal, in pronouncing the judgment, defeated without any regard to law; a justice of the said: “It is not contended that the covenant was ille peace with his jury might deem them agaiust morals, gal ou the ground of the breach of any direct rule of good order or public policy." And after giving some law, or the direct violation of any statute, and we | striking instances of the dangerous tendency of such think to hold it void on the ground of its impolicy a practice, he continues: “It is the duty of both and inconvenience, we ought to be clearly satisfied judges and juries to decide on rights according to the that the performance of it would be necessarily at- laws of the land, and not on their belief as to what tended with injury or inconvenience to the public." ought to be law. Their office is not legislative, it is
In order to ascertain whether the provisions of Gi. judicial; it is to administer the law as they find it, rard's will-because they excluded ecclesiastics, mis and pot to exalt their own belief or notions above the sionaries and ministers of any sect from holding or law, and follow them as a higher code by which the exercising any station or duty in the college thereby rights of the community are to be regulated or confounded, and limited the instruction to be given to trolled." the students to pure morality and general benevolence Tried by these rules, we cannot say that Dickson's and the love of truth, sobriety and industry, thus ex- will is unquestionably and beyond a doubt against cluding by implication all instruction in the Christian | public policy. We know of no constitutional provis. religion-were in contravention of the public policy of ion or statute, or any decision of our courts, nor are the State, the Supreme Court of the United States we aware of any principle of tbe commou law, which held that they were not at liberty to travel out of the holds it to be immoral or wrong for the putative record to ascertain what were the private religious father to make provision for his illegitimate child, opinions of the testator, nor to consider wbether the whether that child be white or colored; or for the scheme of education by himn prescribed was such as illegitimate offspring of such child, whatever the comthey themselves should approve, or 28 was best | plexion of such offspring may be; or for any one who adapted to accomplish the great aims and ends of edu has lived in violation of the public law, and thereby cation; nor could they look at the general considera- | become a criminal, either to a greater or less extent, tion of the supposed interest and policy of the State unless that provision is the result of a previous unof Pennsylvania on the subject, beyond what its Cou derstanding that led to the commission of the offense, stitution and laws and judicial decisions made known and induced a breach of the law and sound public to them. Consequently they held that the question policy of the State. We have seen that such an unas to what is the public policy of the State, and what derstanding is not to be lightly inferred from facts is contrary to it, if inquired into beyond these limits, and circumstances of doubtful import and meaning, would be found to be one of great vagueness and un or which may ad mit of different constructions-one certainty, and to involve discussions which scarcely I consistent with and the other opposed to unquestioned come within the range of the judicial duty and func- policy. The Legislature bas not seen fit to declare tions, and upon whicb meu may and will "complex that the tendency of such provisious would be promioionally differ." They therefore disclaim any right to | tive of immorality, and would induce che formation euter upon such examinations beyond wbat the State and continuance of such illicit cobabitation, and for Constitution, laws and decisions necessarily brought that reason to prohibit them, as has been done by the before them. Vidal v. Girard's Ex'rs, 2 How. 127, 197 | provision cited from the Code of Louisiana. Whether et seq. Such was the view taken by Starnes, J., and such inhibition would be good or bad policy is uot for Benning, J., in Adams v. Buss, 18 Ga. 144 et seq., and us to determine. The question is one upon which 154 et seq., as to what constitutes public policy, and there has existed, and still exists, a contrariety of the sources from which the rules on that subject are opinion, as will be seen by what was said by Lumpto be derived.
kin, J., in the case of Beall v. Beall, cited above. And We cannot think that the judge erred'in refusing to this being the case, its solution is entirely beyond the charge :he jury, that if they believed from the evi- scope and functions of the judicial department of the dence that the will sought to be propounded was con government. If judges would avoid uncertainty and trary to the policy of the State of Georgia, then they fluctuations in the administration of the law, and renwould be authorized to find against it. As to what | der it uniform and consistent, they should follow the constitutes public policy, and as to what contravenes admirable ad vice given by Lord Chancellor Bacon to it, is not a question of fact for the jury, but is a ques- | a magistrate whom he was about to swear into office: tion of law to be determined by the court. Any other“ Look to your books for the law, and not to your rule than this would lead to confusion and injustice, brain." Above all, they should not give themselves and instead of settling, would go far to unsettle, the up to the guidance and direction of their feelings law upon this subject.
and seutiments; for this would unquestionably lead In Pierce v. Randolph, 12 Tex. 290, Chief Justice to excessive irregularity, fluctuation and doubt. They Hemphill, as the organ of the court, says: “But it would then realize that the fame which follows is bet. seems that a new rule has been discovered by which ter than that which goes before, and would avoid the to test the validity of contracts, and that is, the belief supreme folly of mistaking the plaudits and shouts of of the jury with regard to their tendency to immoral the multitude of their cotemporaries for the trumpet ity and breaches of the peace; and this even where of fame. Loyalty to the law, and rigid adherence to such coutracts have been declared by the courts of last the rules it prescribes, is to the enlightened magistrate the plain path of duty, and in pursuing it he can the time be required by the transfer regulations of fall into no error, nor rou into any kind of danger. the company. This certificate is however to be of 10 [Omitting minor questions.)
effect or validity until countersigued by the transfer Judgment affirmed.
agent, and also by the registrar of transfers of the said oumpany, in the city of New York
Iu witness whereof the president and treasurer of CORPORATION - SHARES IN AMERICAN the said company have hereunder subscribed their COMPANY - TITLE TO CERTIFICATES –
names at the city of Albany this 16th day of DecemINDORSEMENT OF TRANSFERS IN
ber, in the year one thousand eight bundred and BLANK-AMERICAN LAW-USAGE
C. C. Clarke, Treasurer. - FRAUD OF BROKER
W. H. Vanderbilt, President. ESTOPPEL.
Countersigned this 16 day of December, 1873 – Ten
shares The Union Trust Company of New York, ENGLISH CHAN. DIV., OCT. 8, 1887.
Register of Transfers,
By A. H. Ogilvie, Secretary. WILLIAMS V. COLONIAL BANK; SAME V. LOND. CHART.
Countersigned this 17th day of December, 1873, BANK OF AUSTRALIA.
Duncan, Sherman & Co.,
Transfer Agents. The executors of a deceased owner of shares in an American
The indorsement was as follows: company desired to be entered on the New York registry
For value received do hereby sell, assign, and in respect of the shares, but had no definite idea of selling
transfer to shares of the capital stock of the New them. On the instructions of their broker they signed a
York Central and Hudson River Railroad Company form of transfer in blank which was indorsed upon the
of one hundred dollars cach, standing in name share certificates, and the certificates so indorsed were
on the books of the company, and represented sent to the brokers to be forwarded to New York for
by the within certificate. registration. The brokers fraudulently deposited the
| And do hereby irrevocably constitute and appoint certificates with the defendant bankers as security for
attorney to execute a surrender and canceladvances. Upon the bankruptcy of the brokers, the fraudlation of the within certificate, and also to do all things was discovered, and the question of the title to the certifi
requisite to transfer the said stock on the books of cates arose. It was in evidence that by American law the
tbe said company, in such form and manner as may legal title to shares vested in the person entitled to be be necessary, or be required, by the regulations of the entered on the register as the legal owner; and that ac said company in that behalf, with full power of substi. cording to the usage of the monetary world, certificates tution in the premises. of this character were equivalent to securities to bearer, Dated Jan. 24, 1881. and passed from hand to hand without registration.
Elizabeth Maria Williams, Held, that the bankers were entitled to a charge upon the
John Cady. shares to the amount secured by the deposit of the certin
In the presence of cates, and that the executors were estopped from deny
Athas. Pryor, jun., Accountant, Cornwall, ing the authority of the brokers to deal with the shares as
Thos. H. Martin, Engineer, Swansea.
Prior to January, 1880, all the shares of the company they thought desirable.
stood on tbe New York registry, but were largely THE first action was brought by Elizabeth Maria dealt with on the London Stock Exchange, but from 1 Williams, John Cady, and John Charles Williams, that date Messrs. J. S. Morgan became the represenas the executors of the will of John Michael Williams, tatives of the company in London. to recover 710 shares in the New York Central and In August, 1880, the plaintiffs were desirous of being Hudson River Railroad Company, belonging to the registered as executors in respect of the testator's estate of the testator and deposited in fraud of the shares, so that they might receive the dividends and plaintiffs with the defendant baik.
sell if opportunity offered. Their agent, Mr. Pryor, The testator died in February, 1880, and his will was accordingly communicated with their stockbrokers, proved by the two first-named plaintiffs on the 25th Messrs. P. W. Thomas & Co., and sent them the March, 1880, power being given to Michael Williams certificates with an extract of the probate of the and the plaintiff John Charles Williams to prove. John testator's will. Charles Williams proved the will on the 19th October, On the 10th November, 1880, Mr. Pryor received a 1882.
letter from Messrs. Thomas & Co., stating that the At the time of his death, J. M. Williams was enti. extract of the probate of the testator's will which had tled to 1210 shares in the New York Central Company, been forwarded to New York with the share certifiwhich were represented by 121 certificates of ten cates was insufficient, and stating various formalities shares each, all registered in the testator's name in the which were required to perfect their title "after books of the company. The following is a copy of one which the share certificates, which are also on their of such certificates, with its indorsement by the way back, must be signed by the executors, and then executors, as subsequently deposited with the defend new certificates will be issued in their names." ant bank:
In answer to another letter from Mr. Pryor, asking E, 4618
whether the executors could sell the shares without Number.
furnishing the required evidence, Messrs. Thomas & The New York Central and Hudson River Railroad Co. wrote to say, that if Mr. Williams had indorsed Company.
the New York Central shares before his death, they John Michael Williams, of Burncoose, Perian ar would have been able to effect the sale of the shares Worthal, Cornwall, England, is entitled to ten shares without further trouble, but that the fact of his not of one hundred dollars each of the capital stock of the having done so necessitated the proving to the comNew York Central and Hudson River Railroad Com pany who his legal representatives were, so that somepany, transferable in person or by attorney in the one who was empowered to do so might indorse the books of the company only on the surrender and can- | certificate. Accordingly the indorsed transfers on the cellation of this certificate by an indorsement thereof share certificates were signed by the two first-named hereon, and in the form and manner wbich may at plaintiffs in blank, as appears above, and sent to Messrs.