execution; but objected to the evidence offered by the defendants for the purpose of disproving the plaintiff's title to any of the other shares claimed by him, on the ground, that Hine had no title at law to them. The defendants insisted, that the transfers to Hine, having been made and registered on the books of the company, in pursuance of the by-law, and in the form prescribed by the directors, were made on the books of the company pursuant to the charter; so that Hine thereby had a legal title to all the shares; and that, as all the attachments were made before the transfers from Hine to E. and J. Graves, and to the plaintiff, were recorded at full length on the books of the company, they had priority thereto, and took all the shares, so that the plaintiff acquired no title whatsoever, in law or equity, to any part of the stock in question. The court were of this opinion, and admitted the evidence offered by the defendants, and thereupon decreed, that the plaintiff should take nothing by his bill; and upon a motion for a new trial it was held by all the judges, that it could not be granted.' 8. A doubt has been entertained, whether a contract for the transfer of stock is within the 17th section of the English statute of frauds. In an action for shares in the stock of the Governor and Company of the copper mines in England, the Judges of the Common Pleas, and afterwards all the Judges of England, were equally divided on the question, whether this was a contract coming within the statute of frauds. In a subsequent case the plaintiff had agreed with one Green, who was the defendant's broker, for £5000 South Sea stock, at £187 per cent., to be delivered about ten days after; and at the day appointed, the plaintiff attended at the transfer office all day with his money, but the defendant never came, and stock having in the mean time considerably risen, the defend 1 See, as to transfer of stock in reference to regulation established by bylaws, ante, Chap. X. § 5, parts 5 and 6. 29 Car. II. c. 3, § 4. 3 Pickering v. Appleby, 2 P. Wms. 308, cited in Long on Sales, 56. ant refused to transfer. Thereupon, the plaintiff filed a bill in chancery for a specific performance, and the defendant pleaded the statute of frauds. When the case came on before the Chancellor, he seemed to be of opinion that the plea was good, and said, that it had been held so in many cases. The defendant, however, having barely pleaded the statute, without adding that there was no memorandum of the agreement, the plea was held bad on that account.' In a subsequent case in chancery, where a bill was filed for a specific performance of an agreement for the transfer of some York-Building's stock, it became unnecessary ultimately to decide the question, whether the contract was within the statute of frauds, as the case was decided on the ground of the defendant's plea being badly pleaded. It has, however, been since decided, that shares in joint stock corporations are not goods, wares, or merchandises within sec. 17, of the statute of frauds; and a contract relating to the sale of them need not be in writing." 4 In a case where A. was bound to transfer £300 East India stock before the 30th of September, though the stock had risen considerably, yet the transfer was decreed in specie, as also an account of the past dividends. In a later case, Lord Eldon said, the broad principle of the court was, that no attention whatever is paid to the rise or fall of the stock; and upon that ground, it is considered equal, whether the appropriation is on one day or another; the party takes the rise or fall as it happens. Where a transfer of stock was made by way of loan upon bond, with condition to replace the stock in six months, with interest in the mean time at 5 per cent.; and the stock not being replaced and being depreciated, it was held that the obligee was entitled to the value of the stock at the 1 Mussell v. Cooke, Prec. in Chan. 533; also cited as above. Colt v. Netterville, 2 P. Wms. 304; see also Sel. Cas. in Chan. 41, and Starkie on Ev. (Am. Ed.) Vol. 2, p. 608. 3 Ex parte Lancaster Canal Co. (Bankruptcy) 1 Dea. & Chit. R. 300. Per Lord Eldon, Ex parte Pye, 18 Ves. 155; and see Morris v. Preston, 7 Ves. 551. time of the transfer, with interest at 5 per cent. to the time of the report, credit being given for some payments on account of the principal. In an action recently after an agreement to transfer stock, the rise, if any, would be given by a jury in damages. If a trustee sells stock, the cestui que trust has an option, either to have the stock or the produce of it with interest. A bill will not lie for a specific performance of an agreement to transfer stock, unless where the thing contracted for may be particularly commodious to the party. In Nuttbrown v. Thornton, the council cited Errington v. Aynesly,' to show that there was no instance of a decree for the specific delivery of chattels, where a compensation may be made in damages. It was stated, in 1804, by Lord Eldon, that it was now perfectly settled, that the court of chancery would not enforce the specific performance of a contract for a transfer of stock; but he continued, "in a book I have of Mr. Brown's, I see Lord Hardwicke did that." 6 9. It was laid down by C. J. Tilghman, that "every country has the right of regulating the transfer of all personal property within its territory; but when no positive regulation exists, the owner transfers it at his pleasure." Lord Mans field has mentioned, that the local nature of contracts respecting the public funds, or stocks requires them to be carried into execution according to the local law. The same rule, says 1 Forest v. Elwes, 4 Ves. 492, 497. 2 Ibid. In an action for a refusal to transfer, the plaintiff is not limited to a recovery of the mere excess in the value of the stock above par, but is entitled to recover the full value of the stock at its highest price, between the time of the refusal to permit a transfer, and the time of the commencement of the suit. Kortright v. Buffalo Com. Bank, 20 Wend. (N. Y.) R. 91. Cud v. Rutter, 1 P. Wms. 570. 10 Ves. 159. 2 Bro. C. C. 341. • Nuttbrown v. Thornton, sup. 7 Morton v. Milne, 6 Binn. (Penn.) R. 361. Robinson v. Bland, 2 Burr. R. 1079. Story, in his "Conflict of Laws," may properly apply to all other local stock or funds, although of a personal nature, such as bank stock, insurance stock, turnpike, canal, and bridge shares, and other incorporeal property, owing its existence to, or regulated by, peculiar local laws.' But although stocks of this nature can only be transferred according to the forms of the lex rei sita, so as to confer a legal title on the purchaser: yet it will give the purchaser a right of action, to compel the vendor to make a transfer in the manner required by the local law. Contracts, says Story, to transfer such property, would be valid if made according to the lex domicilii of the owner, or the lex loci contractus, unless such contracts were specially prohibited by the lex rei sita; and the property would be treated as personal, or as real, in the course of administration, according to the local law." 10. It is an incumbent duty on the part of a bank, or other joint stock corporation, not to permit a transfer of stock until they are satisfied of a party's authority to transfer. If stock be transferred under a forged power of attorney, the real proprietor is entitled to have it replaced by the company, and also the dividends due thereon. This point was determined, in a case in which the Bank of England was defendant, and one which was twice argued. It was an action on the case; and it appeared, that the plaintiff, in the month of May, 1819, had standing in his own name on the books of the bank, £10,000 3 per cent. consolidated bank annuities, £178 10 per annum long annuities, and £800 navy 5 per cent. annuities. In October, 1819, by virtue of certain instruments purporting to be powers of attorney executed by the plaintiff to the Messrs. Drummonds, they sold out two several sums of 1 Story on Con. Laws, 315. Burge Comm. on Colonial and Foreign Law, Pt. 2, ch. 20, p. 750, et seq. Story on Con. Laws, 316. Davis v. Bank of England, 2 Bing. 393; and also fully reported in 3 Petersdorf's Abr. 410. £5000 of the 3 per cent. consolidated bank annuities, and afterwards £75 bank long annuities, part of the said stock then standing in the name of the plaintiff. The signatures to these powers of attorney proved to be forgeries; and the question the court were called upon to decide was, whether the stocks which stood in the plaintiff's name on the books of the bank had been transferred out of that name. Their opin ion was, that the plaintiff's property in the funds had not been transferred; that he was still the legal holder of those funds, and entitled to the dividends payable on account of them. They considered it clear, that a transfer in writing not made by the party transferring, or some agent, duly authorized, could have no effect; and they thought, that the rule, that a forged indorsement on a bill of exchange conveys no interest in such bill, was applicable to the question before them. They laid down the broad principle, that transferable shares of the stock of any company could not be divested out of the proprietor by any act of the company, without the authority of the stockholder; and maintained that the Bank of England had no more authority to affect the interest of any stockholder, than the most insignificant chartered company had to dispose of the shares of the members of such a company. In the opinion given by the court in the above case, the court observed; "We are not called on to decide, whether those, who purchase the stocks transferred to them under the forged powers, might require the bank to confirm that purchase to them, and to pay them the dividends on such stocks, or whether their neglect to inquire into the authenticity of the power of attorney might not throw the loss on them that has been occasioned by the forgeries. But to prevent, as far as we can, the alarm which one argument urged on behalf of the bank is likely to excite, we will say, that the bank cannot refuse to pay the dividends to subsequent purchasers of these stocks. If the bank should say to such subsequent purchasers, the persons from whom you bought were not legally possessed of the stocks they sold to you, the answer would be, that the bank, in the books which the law requires them |