the executor; for the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator to which they are legally liable before all other claims. But if the purchaser knows that the executor is converting the 'estate into money for an unlawful purpose, the purchase will be set aside:" Smith Manual Eq., tit. 1, c. iv. 10. "Where an executor disposes of or pledges his testator's assets in payment of, or as security for, a debt of his own, the person to whom they are disposed of or pledged will take them subject to the claims of creditors and legatees:" Elliot v. Merryman, 1 Lead. Cas. in Eq. 89; Hill v. Simpson, 7 Ves. 152. The same doctrine was held by Chancellor KENT, in 1823, in Field v. Schieffelin, 7 Johns. Ch. R. 150, who, upon a review of all the cases down to the time of that decision, thus sums up the result: "The great difficulty has been to determine how far the purchaser dealt at his peril when he knew from the very face of the proceeding that the executor was applying the assets to his own private purposes as the payment of his own debt. The later and the better doctrine is that in such a case he does buy at his peril." Chief Justice GIBSON, in Petrie v. Clark, 11 S. & R. 377, expressly announces the doctrine "that an executor's applying the assets in payment of his own debt is of itself a circumstance of suspicion which ought to put the purchasing creditor upon inquiry as to the propriety of the transaction."

The power of disposition over his testator's assets which an executor has, is as extensive as that of a trustee, and the conversion of the testator's personal estate into money is within the ordinary line of an executor's duty. Consequently the authorities which have been cited as to the liability of those dealing with executors are fully applicable to the case of one who takes trust property from a trustee as security for his private indebtedness.

We proceed to consider the testimony offered by the respondents and excluded by the judge at the hearing.

The fact that it is usual for dealers in stock to take certificates with blank transfers upon them and to fill them up with the names of purchasers, was wholly immaterial. Such a practice, as we have already observed, does not make the shares negotiable, and the purchaser whose name is written into the transfer must always derive his title immediately and solely from the stockholder of record. The point is not made by the complainant that a transfer in blank is out of the usual course of business, or a suspicious

circumstance, so that evidence of usage was not requisite to repel such an inference.

The fact that it is common to issue certificates of stock in the name of one as trustee when no trust actually exists, has no legal bearing on the decision of the present case.

The rules of law are presumed to be known by all men; and they must govern themselves accordingly. The law holds that the insertion of the word "trustee" after the name of a stockholder does indicate and give notice of a trust. No one is at liberty to disregard such notice and to abstain from inquiry for the reason that a trust is frequently simulated or pretended when it really does not exist. The whole force of this offer of evidence is addressed to the question whether the word "trustee" alone has any significance and does amount to notice of the existence of a trust. But this has been heretofore decided, and is no longer an open question in this Commonwealth: Sturtevant v. Jaques, ubi supra.

The circumstance that stock certificates issued in the name of one as trustee and by him transferred in blank, are constantly bought and sold in the market without inquiry, is likewise unavailing. A usage to disregard one's legal duty, to be ignorant of a rule of law, and to act as if it did not exist, can have no standing in the courts.

It is to be borne in mind that the question under discussion is not whether one holding stock as trustee may sell it in the market and pass a good title to the purchaser. We do not intimate that this cannot be done. The distinction between a sale and a pledge of trust property is palpable and manifest. Nor is the present question whether a trustee may borrow money on the pledge of stock held in trust. We do not decide that such a transaction may not under some circumstances be sustained. These questions are left to be adjudged when they arise. The point now decided is that one holding stock as trustee has prima facie no right to pledge it to secure his own debt growing out of an independent transaction; and that whoever takes it as security for such a debt without inquiry, does so at his peril. All the proffers of evidence taken together fall short of showing any usage to do this: and no evidence of usage could legalize such conduct. Because Spencer, Vila & Co. took these certificates of stock to secure an antecedent debt from Mellen, Ward & Co. to them with notice that they were held in trust, and made no inquiry as to Carter's authority to use

trust property for such a purpose, they cannot retain the security against the equitable owner of the stock, when it appears that Carter in making the pledge was guilty of a fraudulent breach of

trust.

The remaining questions relate to the effect of the payment on the 18th of March of the assessment of $10,000 on this stock by Spencer, Vila & Co. to Q. A. Shaw, treasurer and transfer agent, in the presence of S. P. Shaw, the complainant. On the 2d of March, Spencer, Vila & Co. had received written notice from Q. A. Shaw that Carter had no right to transfer the stock to them, and that their title to it was contested. By receiving the money, which Spencer, Vila & Co. voluntarily offered to pay, the Messrs. Shaw did not induce them to change their position, or deprive them of any rights. They had taken the stock certificates nineteen days before they made the payment, and, when it was made, they had no reason to believe that either S. P. Shaw or Q. A. Shaw intended to abandon their claim, or to waive any of their rights. Q. A. Shaw could not have done so by any act of his own. S. P. Shaw did no act, and only omitted to object to the payment of the assessment. The payment was evidently the voluntary act of Spencer, Vila & Co., intended to fortify their own position, and to entitle them to a new certificate of the stock if their title should prove good. It was made for their own benefit and protection, and no act or declaration of the Messrs. Shaw deceived or misled, or induced them to make it. A waiver is an intentional relinquishment of a known right. An estoppel of the description relied on in this case can be maintained only on the ground that by the fault of one party another has been induced innocently and ignorantly to change his position for the worse in such a manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy. These simple definitions of the terms "waiver" and "estoppel” exclude the possibility of applying either doctrine to the effect of the payment of this assessment.

The amount paid, with interest, must be refunded before any decree can be made requiring the respondents to retransfer the certificates to the complainant. As the bill contains no special prayer for this relief, and no offer to refund the money, it will require amendment before such a decree can be entered. But the injunction heretofore granted is made perpetual.

United States Circuit Court, District of Wisconsin.

JAY C. AKERLY v. LEVI B. VILAS AND OTHERS.

After a state court has made an order under the Act of Congress for the removal of a cause to a United States court, any further proceedings in the state court or in any other state court by appeal or other process, are void.

A state court making an order for the removal of a cause to a United States court, has no jurisdiction to allow an appeal from such order and to enjoin its clerk from certifying the record pending the appeal.

Where the clerk refuses under such an order to certify the record to the United States court, the latter will, on motion, allow the record and proceedings to be supplied by copies or affidavits, and the cause to proceed as if the record had been duly certified.

Where a state county court has given judgment which has been reversed by the Supreme Court of the state, and judgment entered in effect ordering a venire de noro, the cause has not reached final hearing or trial, and a motion to remove to a United States court is in time.

THE plaintiff, a citizen of New York, sued Vilas, a citizen of Wisconsin, and others, in the Circuit Court of Dane county. In October 1868, plaintiff asked the court, under the Act of Congress of March 2d 1867 (Statutes 1867, p. 558), to remove the cause to the Circuit Court of the United States, and on November 8th 1868 the court made an order to that effect, but gave the defendant leave to appeal from this order to the Supreme Court of the state, and enjoined its clerk from certifying the record pending such appeal. The clerk having refused to certify the record, the plaintiff now came into this court with affidavits of the facts and moved for an order allowing him to file in this court copies of the process, pleadings, and other proceedings in the cause, and that the cause might thereupon proceed as if regularly instituted in this court.

Opinion by

MILLER, D. J.--This motion is made under the Act of March 2d 1833, § 4 (4 Stat. 634, Bright. Dig. tit. Circuit Courts, pl. 21), which enacts that "In any case in which any party is, or may be by law entitled to copies of the records and proceedings in any suit or prosecution in any state court to be used in any court of the United States, if the clerk of said court shall upon demand, and the payment or tender of the legal fees, refuse or neglect to deliver to such party certified copies of such record and proceed

ings, the court of the United States in which such record and proceedings may be needed, on proof by affidavit, that the clerk of such court has refused or neglected to deliver copies thereof on demand as aforesaid, may direct and allow such record to be supplied by affidavit or otherwise, as the circumstances of the case may require or allow, and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such process awarded, as if certified copies of such records and proceedings had been regularly before the said court." The requirements of removal of causes from a court of a state to a court of the United States, according to the Act approved March 2d 1867, 14 Statutes 558, are, that a suit must be pending in the state court at the time of the application for removal, in which there is a controversy between a citizen of the state in which the suit is brought, and a citizen of another state, and the matter in dispute exceeds the sum of $500 exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he shall make and file in such court an affidavit stating that he has reason to, and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court, may at any time before the final hearing or trial of the suit file a petition in such state court for the removal of the suit into the next Circuit Court of the United States, to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court on the first day of its session copies of all process, pleadings, depositions, testimony, and other proceedings, &c. And it shall be thereupon the duty of the state court to accept the surety and proceed no further in the suit.

The Circuit Court of Dane county was satisfied that all the requirements of the act were complied with by plaintiff, and on inspection of the record found that there had not been a final trial or hearing of the suit. The court then accepted the surety offered, and ordered that all proceedings in the suit be stayed. In the 12th section of the Act of 1789, 1 Statutes 73 (Bright. Dig. tit. Circuit Courts, pl. 19), is the same provision in respect to the surety upon an application for the removal of causes from state to United States courts, "that it shall be the duty of the state court to accept the surety and proceed no further in the cause." The Supreme Court of the United States in Gordon v. Longest, 16 Peters 97, decided that when the application for the