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The same principle was applied to bills of lading in Gurney v. Behrend, 3 El. & Bl. 622, decided by the English queen's bench, where an instrument of that kind, indorsed in blank by the consignor, and sent by him to his correspondent, had been misappropriated. The correspondent, without authority, fraudulently transferred the bill for value, and it was held by Lord CAMPBELL that, for the want of the element of negotiability in the paper, the title to the goods was unaffected by the transaction.

The doctrine of Barstow v. Mining Co., supra, is well supported by authority, and, in our judgment, announces a correct principle of law, and we fully approve it. Woolley v. Sergeant, 14 Amer. Dec. note, p. 427, and cases there cited; Cook, Stocks, §§ 7, 10, 192, 368, 437; 2 Daniel, Neg. Inst. (3d Ed.) § 1708g. It harmonizes entirely with the declaration of our statute that shares of stock in private corporations are "personal property, transferable on the books of the corporation" in accordance with the rules and regulations of the corporation. Code 1886, § 1669; Campbell v. Iron Co., 83 Ala. 451, 3 South. Rep. 369.

There is a class of cases, not to be confounded with the one in hand, where the holder of such a certificate of stock, indorsed in blank, is clothed with power as agent or trustee to deal with such stock to a limited extent, and transfers it by exceeding his powers, or in breach of his trust. In such cases it has often been held that the true owner, having conferred on the holder by contract all the external indicia of title, and an apparently unlimited power of disposition over the stock, "is estopped to assert his title as against a third person, who, acting in good faith, acquires it for value from the apparent owner." 2 Daniel, Neg. Inst. (3d Ed.) § 1708g; McNeil v. Bank, 46 N. Y. 325; Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Prall v. Tilt, 28 N. J. Eq. 479; Bank v. Livingston, 74 N. Y. 223. These cases rest on the principle that it is more just and reasonable, where one of two innocent parties must suffer loss, that he should be the loser who has put trust and confidence in the deceiver than a stranger who has been negligent in trusting no one. Allen v. Maury, 66 Ala. 10.

It being an established principle of law that certificates of stock are not to be regarded as negotiable paper, it is not permissible to prove a custom or usage among stock-brokers to the contrary. No usage is good which conflicts with an established principle of law, any more than one which contravenes or nullifies the express stipulations of a contract. Dickinson v. Gay, 83 Amer. Dec. 656, note 664; Railroad Co. v. Johnston, 75 Ala. 596; Lehman v. Marshall, 47 Ala. 362.

The decree of the court below is in accordance with these views, and must be affirmed.

MAXWELL v. GRACE.

(Supreme Court of Alabama. January 15, 1889.)

HUSBAND AND WIFE-CONVEYANCES BETWEEN-RIGHTS OF WIFE.

As before act Ala. Feb. 28, 1887, a conveyance by a husband directly to his wife was absolutely void at law, though it might give her an equity if otherwise valid, a purchaser of the land at execution sale under judgment against the husband, between the date of such conveyance and the passage of the act of 1887, took it free from any rights at law which that act would otherwise have given to the wife by virtue of the conveyance.

Appeal from circuit court, Fayette county.

This action was brought by Mrs. Annie E. Grace, the wife of B. E. Grace, to recover the possession of a tract of land, and was commenced on February 10, 1888. Mrs. E. F. Maxwell intervened as landlord of the tenant in possession, and pleaded not guilty; and the cause was tried on issue joined on that plea. The plaintiff claimed the land under a deed of conveyance from her

husband, dated January 6, 1885, and which recited as its consideration an indebtedness of $150 on account of money loaned to him by her, belonging to her statutory separate estate; while the defendant claimed under a sheriff's deed, dated March 1, 1886, as a purchaser at a sale under an execution against the said B. E. Grace, plaintiff's husband. The court charged the jury "that they must find for the plaintiff if they believed the evidence." The defendant excepted to this charge, and she now assigns the giving of the same as

error.

McGuire & Collier, for appellant. Ne Smith & Sanford, for appelleee.

STONE, C. J. We have had several statutes securing to married women their separate estate. The act of 1850, substantially conformed to by the Code of 1852, materially modified the act of 1848. Yet we have held that estates acquired under the former statute, and held February 13, 1850, (Sess. Acts, 63,) the time when the later statute was approved, passed immediately under its provisions, and thenceforth were governed by them. Such was the statutory provision. Rev. Code, § 2388; Code 1876, § 2722; Cannon v. Turner, 32 Ala. 483; Warfield v. Ravesies, 38 Ala. 518. So property acquired by the wife under either of the former statutes, and held on the 28th February, 1887, (the date of our latest enactment on the subject,) passed immediately under the dominion of the act “to define the rights and liabilities of husband and wife," and thereafter was governed by its provisions. Sess. Acts 1886-87, p. 80; Code 1886, §§ 2341-2356; Rooney v. Michael, 84 Ala. 585, 4 South. Rep. 421. In May, 1883, Caine and wife conveyed the lands in controversy to B. E. Grace, husband of Annie E., on a recited consideration of $800paid. In January, 1885, B. E. Grace, reciting a consideration of $150, which his wife had lent him,-her statutory separate estate,-conveyed the lot in controversy by deed directly to her. Under all our rulings a deed of land, at that time, from husband directly to his wife, was absolutely void at law, and conveyed no title. This left the legal title in the husband, but conveyed an equity to the wife, if the transaction was otherwise free from valid objection. But so far as legal rights and remedies were concerned, the title was in the husband, who alone could sue or defend at law. Powe v. McLeod, 76 Ala. 418; McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Warren v. Jones, 68 Ala. 449; Carrington v. Richardson, 79 Ala. 101. If the legal title to the lot in controversy had remained in B. E. Grace until the approval of the act of February 28, 1887, the question of transmitting her equity into a right to maintain or defend an action at law would have pertained only to the remedy, not to the title. That statute, as we have seen, converted her equity into a right to sue at law. Edwards v. Williamson, 70 Ala. 145. But the legal title did not remain in B. E. Grace. Upon a judgment rendered in favor of Medlin and against B. E. Grace and others, an execution was issued, received and levied by the sheriff, and the lot in controversy sold under the execution, and purchased by Mrs. Maxwell, the appellant. In March, 1886, the sheriff executed a deed to her, which conveyed all the title that was in B. E. Grace. This, as we have seen, was then a legal title, while the claim of Mrs. Grace was, at the most, an equity. At any time between. that conveyance-March, 1886—and February 28, 1887, Mrs. Maxwell could have recovered the property from Mrs. Grace, because, in a court of law, the legal title dominates the equitable. Carrington v. Richardson, 79 Ala. 101. If the statute of February 28, 1887, had not been enacted, no one would con-tend that Mrs. Grace could recover the lot of Mrs. Maxwell in an action at law. Can legislation devest a legal title out of one, and vest it in another? This would not be due process of law. Trust Co. v. Boykin, 38 Ala. 510; Rob ertson v. Bradford, 70 Ala. 385; Wetzler v Kelly, 83 Ala. 440, 3 South. Rep. 440. The jury ought to have been instructed to find for the defendant. versed and remanded.

Re

BUSH v. HENRY.

(Supreme Court of Alabama. February 6, 1889.)

EXECUTION-LEVY-CLAIM BY THIRD PARTY-EQUITABLE RIGHT.

In a statutory action to try the right of property in certain oxen taken under execution against claimant's husband, it appeared that the oxen were the offspring of a cow, which the husband testified he had bought on credit, and that claimant paid for her. He also testified that he turned the cow over to his wife in payment of a debt, and it appeared that many years before claimant had owned two cows, her separate property, which her husband sold with her consent, and used the money, promising to repay it to her. Held, that claimant's right was only equitable, and the jury were properly charged to find for the execution plaintiff.

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge. Statutory trial of the right of property in a yoke of oxen, between Albert G. Henry, plaintiff in execution, against Calvin Bush and Mrs. Minerva Bush, wife of Calvin, as claimant, originating before a justice of the peace. On the trial in the circuit court, the court charged the jury that, "if they believe the evidence, they must find for the plaintiff in execution." The claimant excepted to this charge, and she now assigns the giving of the same as error. Brown & Holloday and J. G. Winter, for appellant. Lusk & Bell, for appellee.

STONE, C. J. The only question in this case is whether Mrs. Bush, a married woman, has shown such a title to the oxen in controversy as will maintain her claim in the present suit, which is a trial of the right of property. This is a statutory action under our jurisprudence, and the burden of proof is primarily on the plaintiff in execution or attachment. When, however, he makes a prima facie case of property in the defendant, the burden then shifts, and the claimant must prove a paramount title in himself, and, to avail, the title must be legal, not equitable. Foster v. Goodwin, 82 Ala. 384, 2 South. Rep. 895; Loeb v. Manasses, 78 Ala. 555; Powe v. McLeod, 76 Ala. 418; Hardy v. Ingram, 84 Ala. 544, 4 South. Rep. 372. And it is settled that, when property is seized under process against the husband, which the wife claims under sale or gift by or conveyance from him to her, neither she in her own name, nor in the name of the husband as trustee, can defend on such title in a trial at law of the right of property. Loeb v. Manasses, 78 Ala. 555; Snediker v. Boyleston, 83 Ala. 408, 4 South. Rep. 33.

Henry was plaintiff in execution. Calvin Bush, the defendant, and Minerva Bush, wife of Calvin, was claimant. The subject of the suit was a yoke of oxen, progeny in the second generation of a cow, the title to which is hereafter set forth. If the claimant had a legal title to the cow, then her claim to the oxen was made good. Partus sequitur ventrem. Gans v. Williams, 62 Ala. 41; Meyer v. Cook, 85 Ala. 417, ante, 147. The testimony tending to show Mrs. Bush's ownership of the oxen was by her husband, and was substantially as follows: Many years ago Mrs. Bush owned two cows, her statutory separate estate. These cows the husband sold with the approbation of the wife, used the money, and promised to repay it to her. Another cow was subsequently purchased, from which the oxen are descendants. Calvin Bush's testimony in relation to this latter cow is as follows: "We rented the Coffee land, and my wife had a little patch of cotton which I allowed her to own, to do as she pleased with. I plowed it, and she planted and cultivated and gathered it herself. She picked the cotton, and it was taken to the gin, and ginned, and turned over to Dr. Jackson to pay for the cow. I bought the cow from James M. Jackson for forty dollars. I first bargained for the cow on credit, but my wife's cotton paid for her. I then turned the cow over to my wife for the cows I had sold of hers, and I never had anything more to do with her. These steers are calves of calves of that cow."

v.5so.no.17-21

This testimony is susceptible of two interpretations: First, that Bush purchased the cow on credit, and then traded or turned the ownership over to his wife, on condition that she would and did pay for her; second, that being indebted to his wife for her two cows previously sold by him, he gave or sold her this cow in payment of the debt. Either interpretation shows that she acquired all the right she has by direct transfer from her husband, which clothes her only with an equity, and not the legal title. Pollak v. Graves, 72 Ala. 347; Meyer v. Sulzbacher, 75 Ala. 423; Daffron v. Crump, 69 Ala. 77; Evans v. English, 61 Ala. 416.

The claim in this case was interposed in May, 1886, and is not affected by the act approved February 28, 1887. Code 1886, § 3004; Hardy v. Ingram, 84 Ala. 544, 4 South. Rep. 372.

The circuit court did not err in giving the general charge in favor of the plaintiff, as Mrs. Bush had no title which she could maintain in a court of law. Affirmed.

MONTGOMERY & F. RY. Co. v. MCKENZIE.

SOUTHERN RY. CONST. & LAND Co. v. MCKENZIE et al.

(Supreme Court of Alabama. January 9, 1889.)

1. DISCOVERY-BY CREDITORS-BEFORE JUDGMENT-CONSTITUTIONAL LAW-TRIAL BY JURY.

Code Ala. 1886, § 3545, authorizing a creditor who has no lien or judgment to file a bill in chancery for the discovery of assets of the debtor liable to the payment of his debts, making no provision for the trial of any questions arising on such a bill, does not violate Čonst. Ala. art. 1, § 12, preserving the right of trial by jury. 2. SAME-PARTIES.

Separate creditors cannot unite in such a bill as plaintiffs.

Appeals from chancery court, Montgomery county; JOHN A. FOSTER, Chancellor.

These two cases were argued and submitted together, involving the same legal questions, and substantially the same facts. The bill in each case was filed on the 26th April, 1888,-in one case by B. B. McKenzie against the Montgomery & Florida Railway Company; and in the other, by McKenzie and others against the Southern Railway Construction & Land Company, a private corporation organized under the general statutes. The complainants in each case claimed to be the creditors at large of the defendant corporation, alleged its insolvency, and prayed a discovery of its assets. In each case there was a demurrer to the bill, assigning several special grounds of demurrer; the principal grounds being that the complainants are not judgment creditors, and have not exhausted their legal remedies, and that the facts stated in the bill are not sufficient to sustain the jurisdiction of the court. In the case against the Southern Railway Construction & Land Company it was also assigned as a ground of demurrer that there was a misjoinder of parties complainant. The chancellor overruled the demurrer in each case, and bis decree is here assigned as error.

Sayre, Stringfellow & Le Grand, White, Roquemore & Long, Troy, Tompkins & London, and Graves & Blakey, for appellants. R. H. Clark and Richardson & Steiner, for appellees.

STONE, C. J. These suits in equity were instituted by persons styling and describing themselves as creditors without a lien, under the act "to extend the jurisdiction of courts of chancery," approved March 8, 1871, (Sess. Acts, 34; Code 1876, § 3887,) as amended by the Code of 1886, § 3545. The statute, as first enacted, limited its remedial effect to claims, (judgments,) on

which executions had been issued, and returned "no property." The amendment extended its terms to creditors without a lien or judgment; and the present bills are filed under the amendatory clause. The bills are filed against corporations for the discovery of assets, subject to the payment of their debts. The bills aver that said corporations are without visible, accessible means subject to their debts, and, on belief, they charge that each has property and effects liable to its debts, but which is not known to the respective complainants. They pray for discovery, and it is not perceived that in any matter of form or substance they fail to conform to the requirements of the statute. There was a demurrer to each bill, which the chancellor overruled. The ground of demurrer pressed before us is that the amendment to the statute, noted above, violates the constitution of this state, which declares "that the right of trial by jury shall remain inviolate." Declaration of Rights, (Const. art. 1, § 12.) The statute we are considering makes no provision for a jury to ascertain and determine the amount of the demands the bills before us seek to enforce, and they are purely legal demands.

It is very difficult to determine the precise extent and import of the constitutional provision we are called on to interpret. It is generally conceded that the jury referred to is a body of 12 men selected from the vicinage, (county or district,) such as existed in the parent country, when we separated from it, and established a government of our own. It is also generally conceded that all claims, demands, and contentions which at the time were entitled to jury trial in the parent country are equally entitled to it under our constitutional guaranty. This embraces all purely legal rights and contentions which were known to the common law, which had no element of equitable cognizance in their composition. But when a jury was not demandable of right at the common law, it is not demandable of right under our constitution. When the powers of the chancellor grew into an equitable system in England, and meted out justice without a jury, it established another principle, which became well rooted in that country's jurisprudence before any of our constitutions were adopted. That principle is this: When any contention or controversy contains within it some element of purely equitable cognizance, and the court of chancery acquires jurisdiction of the controversy for the purpose of adjusting the equity, it does not confine or limit its remedial administration to the mere adjustment of the equity, but retains the case, and administers complete justice between the parties, although in doing so it is called on to decide, and does decide, questions of purely legal cognizance. That principle obtains with us, and is not considered an invasion of the right of trial by jury. It is in accordance with the English jury system, as it was administered when we embodied it in our constitutions.

There is another principle which seems to be well established, and which has been fostered, if not engendered, by the discoveries, the enterprise, and stirring activity of our relatively young country. New subjects of municipal regulation have presented themselves, and new and less tardy methods of remedial administration have become desirable. There can be no doubt that a new right or contention, unknown to common-law jury trial, is not within the constitutional provision we are considering. "It is undoubtedly competent to create new tribunals without common-law powers, and to authorize them to proceed without a jury; but a change in the forms of action will not authorize submitting common-law rights to a tribunal in which no jury is allowed." Cooley, Const. Lim. 410; Proff. Jury, § 84; Thomp. & M. Jur. § 24; 1 Story, Eq. Jur. §§ 71, 72; 1 Pom. Eq. Jur. § 116; 2 Pom. Eq. Jur. 914, and notes; Tims v. State, 26 Ala. 165; Boring v. Williams, 17 Ala. 510; Youngblood v. Youngblood, 54 Ala. 486; Haines v. Levin, 51 Pa. St. 412; Rhines v. Clark, Id. 96; Haines' Appeal, 73 Pa. St. 169; People v. Railroad Co., 57 N. Y. 161; State v. Johnson, 26 Ark. 281; State v. Vail, 53 Mo. 97; Same v. Lupton, 64 Mo. 415; People v. Cicott, 16 Mich. 283; Royall v.

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