word 'holder,' as there used. This term is not, necessarily, restricted to the nominal holder. It will admit of a broader and more enlarged meaning; and may well be applied to the party really and beneficially interested in the stock. And there can be no good reason why it should not be so applied, when the bank is fully apprised of all circumstances in relation to the stock, and knows who is the real holder thereof. This provision was intended to put into the hands of the bank additional security for debts due from stockholders. But, when it is known that the person in whose name the stock stands has no interest in it, he will acquire no credit upon the strength of such stock; and that such was the understanding of the bank, in this case, is clearly shown by the evidence. * * * To permit the bank, under such circumstances, to avail itself of this stock to satisfy a debt contracted without any reference to it as security, and with full knowledge that Lynn held it in trust for the complainants, would be repugnant to the most obvious principles of justice and equity. Suppose the trust had been expressly declared upon the transfer book of the bank, would there be the least color for sustaining the claim now set up? And yet Lynn would be the legal holder of the stock, in such case, as much as in the one now before the court. Full notice of a trust draws after it all the consequences of an express declaration of the trust, as to all persons chargeable with such notice."

In commenting upon the above-cited case, counsel for defendants say:

"It is clear that, had the words 'registered holder' been used in the statute, the court would have reached the opposite conclusion."

We cannot agree with counsel in this claim. Obviously the word "holder" in the above-quoted statute meant holder of record, or "registered holder," and the trust relation, if shown, would apply to one as well as to the other. There is no claim in the instant case that the defendants did not know that the stock in question belonged, at all times subsequent to 1892, to the Porter family, or estate, and they knew that

Recor never claimed to own it, and he never obtained any credit upon the strength of it. See, also, Prince Investment Co. v. Land Co., 68 Minn. 121 (70 N. W. 1079).

That a bank may waive its lien is beyond question. National Bank v. Bank, 105 U. S. 217, and cases cited in note. The last-cited case is also instructive upon the powers of a cashier.

That the one whose name appears on the stock book is presumed to be the real owner, unless some one else is clearly shown to be such, is undoubtedly the rule. It is equally clear that this is a rebuttable presumption. See cases cited in 5 Cyc. p. 442, note 3.

All persons, unaffected with notice to the contrary, are at liberty to act upon the faith of the title of stock being where it appears upon the corporation books to be. Fisher v. Bank, 5 Gray (Mass.), 373.

Where the name of an individual appears on the stock books of a corporation as a stockholder, this is presumptive evidence that he is so. The burden of proof is thrown then upon the defendant to show the contrary. Hoagland v. Bell, 36 Barb. (N. Y.) 57.

Books of a corporation are prima facie evidence as to who possesses the stock ownership. The object of the stock book in requiring transfer of stock to be recorded by the corporation is for the protection of the corporation, to enable it to know who are its members who are entitled to its dividends. And in the case of a dispute as to a right to vote the books of the corporation are prima facie evidence. If the real owner wishes to have his name, or the true state of facts, appear on the books, he has his remedy in equity to compel a transfer. Hoppin v. Buffum, 9 R. I. 513 (11 Am. Rep. 291). There is a line of cases holding that the record is deemed conclusive of ownership. An examination of the cases will show that they relate to stockholders' liability. See Plumb v.

Bank of Enterprise, 48 Kan. 484 (29 Pac. 699). That was a proceeding to enforce the individual liability of several stockholders of the Kansas Harvester Company, a corporation organized under the laws of Kansas. It was there held that the general rule is that the books of the corporation furnish evidence as to what persons are entitled to the rights and privileges of stockholders, and as to whom the creditors may look for payment in the event of insolvency of the corporation.

"Creditors of a corporation are presumed to have relied upon the books; and, where a stockholder sells his stock, but permits his name to stand upon the books of the corporation as one of its stockholders, he is in no condition to claim exemption from individual liability. If he has attempted in good faith to have the transfer recorded, and, having done all in his power to that end, fails, other conditions would arise; but where he negligently permits the stock to stand upon the books in his own name, and fails to do that which is necessary to transfer the legal title of the stock in accordance with the statute, he is not released from individual liability by the mere assignment and delivery of the certificates."

In such case the liability of the trustee remains, although he may look to his cestui que trust for reimbursement. Richmond v. Irons, 121 U. S. 27 (7 Sup. Ct. 788); Hawkins v. Glenn, 131 U. S. 319 (9 Sup. Ct. 739).

The equities of the case are with the complainant. The decree of the circuit court is affirmed, with costs to the complainant.

BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

PEOPLE v. AYERS.

1. CRIMINAL LAW-IMPEACHMENT EVIDENCE.

For purposes of impeachment, in a prosecution for statutory rape, an affidavit of the complaining witness made as a basis of the warrant was admissible in evidence, but not for the purpose of substantive proof.

2. SAME-RAPE.

While such testimony was not incompetent for the purpose of impeaching the witness, it was not sufficient to justify submitting the evidence to the jury without other proof of respondent's guilt, and her statement, made in the presence of the justice of the peace, after a previous trial, that she had testified to the truth, were hearsay and incompetent for the purpose of conviction.

Exceptions before sentence from Cass; Des Voignes, J. Submitted April 23, 1915. (Docket No. 120.) Decided June 7, 1915.

Oliver Ayers was convicted of rape. Reversed.

Grant Fellows, Attorney General, and Otis Huff, Prosecuting Attorney, for the people.

C. M. Lyle and W. J. Barnard, for defendant.

STONE, J. Respondent was charged with statutory rape, alleged to have been committed on April 27, 1911, in Penn township, Cass county, upon one Mabel Bowerman, a female child under the age of 16 years. Upon the first trial of the case it appeared that said Mabel Bowerman gave birth to an illegitimate child on January 22, 1912, and she testified that respondent was the father of this child, as the result of sexual intercourse with her which occurred "on the Underwood Farm in the house," where she was a member of the family of respondent, and had been for a num

ber of years, although not legally adopted. The conviction of the respondent upon the first trial was reversed by this court. People v. Ayers, 182 Mich. 241 (148 N. W. 383). After the first trial, the girl, Mabel, retracted her charge against respondent, and upon the second trial-which is now before us for review-she testified that respondent had never had sexual intercourse with her; that her testimony upon the first trial was false; "that she was scared into it;" and that one Charles Rogers was the father of her child. Upon the last trial of the case the people were permitted, against the objection and exception of respondent's counsel, to offer and read in evidence an affidavit as to the parentage of the child, made by the girl before the warrant was issued. Upon objection being made to this, the trial court said:

"Here is an affidavit, the basis of the warrant in this case, made by the girl, and it is either admissible or not. If it is not admissible, there is no case here; if it is admissible, why, it should go in. For that reason it may be received at this time, subject to your objection.'

She was also interrogated and examined at length as to the testimony which she gave upon the former trial, and the same was read to her from the minutes of testimony taken by the official stenographer, and in some instances she testified that she did not remember her former testimony. The stenographer also testified to such former testimony from the transcript which was read to the jury. Upon objection being made as not proper matter of impeachment, the court said:

"Well, now, our court has held that where a person testifies that they don't remember, you have the right, if you are entitled to impeach at all, to impeach that because that is not a denial, or rather is not an admission; it is a denial in part and you have a right to impeach. The question I have ruled upon here—