In the light of these principles we think the conclusion inevitable, that shares of stock must, like other personal property, be delivered at the time of sale or within a reasonable time, thereafter, and that a transfer on the books, in conformity with the rules of the company, is the mode of delivery best calculated to defeat the evils which delivery was designed to preclude. Delivery of the certificate will not answer the purpose. A certificate of stock is not a negotiable instrument; it has none of the attributes of such instruments. After its assignment, the title of the holder may be defeated in a variety of ways, and even at the time of the assignment the assignor may have had nothing to dispose of, notwithstanding his possession of the certificate.32 A purchaser of shares of stock therefore, may not rely upon such security. If he wishes to protect himself against all contingencies, he must register the transfer, In no other way can all risks be avoided. Moreover, until the transfer is entered upon the books of the company, the purchaser is not entitled to vote or receive dividends, or share in any of the benefits of the association; his vendor may still enjoy these benefits. On the other hand, by failing to register, he escapes the responsibilities which attach to membership. He cannot be sued by the creditors of the corporation, or held for assessments. If a man neglects to do what is necessary for his protection, or what he is expected to do under the circumstances, the presumption fairly arises that his omission is fraudulent in fact; if the effect of such neglect is to injure others, it is fraudulent in law. For this reason it has always been held that one who purchases stock from one who appears on the books to be the owner, is to be preferred to the holder of the certificate.33 Why should not the creditor of the stockholder of record receive the same protection? The same presumption of fraud arises, the same opportunity for fraud exists. A man indebted, wishing to avoid payment, can readily transfer his certificate and thereby avoid responsibility; nothing could be easier.

32 See cases collated 22 Cent. Law Journal, 269.

Cady v. Potter, 55 Barb. 463, 1869; N. Y. R. R. v. Schuyler, 34 N. Y. 79, 1865; Greenleaf v. Ludington, 15 Wis. 568; Black v. Zacherie, 3 How. 483, 512; Boatmans Ins. Co. v. Alfe, 48 Mo. 137; dictum contra, 15 Fed. Rep. 500.

And not only may the stock thereby be removed from the reach of the assignor's creditors, but it may be placed beyond the reach of the assignee's creditors. It has been held that the interests of a holder of a certificate, whose name does not appear on the books of the company, cannot be reached by attachment or execution.34 Surely the courts

should be reluctant to provide such facilities for the commission of fraud as would grow out of the rule declared by many of the judges. Proof of actual fraud is notoriously difficult. It was to avoid this difficulty that the rule requiring delivery was originally established. In addition to these reasons, founded upon policy, a strong and positive argument may be drawn from certain acts of legislation, why a rules which requires transfeas of stock to be entered upon the books of the corporation should be established. As pointed out by Judge Shaw, most of the States have enacted laws providing that shares of stock shall be levied on by notice to the proper officer of the company. These acts furnish strong evidence of a legislative intent to subject property of this nature to the payment of debts. In no other way can this purpose be accomplished, except by declaring unrecorded transfers to be void. If the certificates are made negotiable, or even quasi negotiable, the enormous property represented by these instruments is practically placed beyond the reach of creditors. This great evil should, if possible, be avoided. can be avoided by making the books conclusive evidence of ownership. If such a rule would embarrass speculation, and make stock jobbing more difficult, it has the merit of affording the amplest security to honest investment. Finally, we believe that the rule should not be made to depend upon the special provisions of corporate charters. Although men are presumed to know these provisions, as a matter of fact, they are usually ignorant of them. Whether the charter or by-laws or certificates provide that transfers should be registered, the reasons for the rule still exist. It is founded upon principles of policy, strong alike in all cases, and should

34 Lippit v. Wood Paper Co., 1 N. Y. 118; Beckwith v. Burrough, 13 R. I. 298; Language of Judge Shaw, 5 Gray. 371.

not be made to depend on slight or trivial circumstances.35 ISAAC H. LIONBERGER.

St. Louis.

35 See also Brock v. Ratton, I. U. C. C. P. 222; Hamberstone v. Chase, 2 Y. & C. 209; Broadhurst v. Varley, 12 C. R. N. S. 212; Watts v. Porter, 23, L. J. Rep. Q. R. 346; Shropshire U. R. & C. Co. v. Reg., 7 I. R. H. I. C. S. 496.

DELIVERY OF DEEDS.

3

Necessity of Delivery.-A delivery is essential to give effect to a deed, whether it be a conveyance founded upon a valuable considation, or a mere voluntary conveyance.2 Thus a deed takes effect from the time of the delivery, and not from the time of the date 3 though the date is presumptively the true time of its execution and delivery. And without a delivery on the part of the grantor, which act is the consummation of the conveyance all the preceding formalities are unavailable to impart validity to it as a solemn instrument of title." Nor can a valid deed once delivered be defeated by any subsequent act, unless by virtue of a condition in the deed itself. But the deed of a corporation need not be delivered, since the corporate seal gives perfection to the instrument without further ceremony." And so title by

1 Bank v. Bailhace, 3 W. C. Rep. 140; S. C. 4 Pac. Rep. 106.

2 Jones v. Jones, 9 Conn. 111; 16 Am. Dec. 35; Stiles v. Brown, 16 Vt. 563; Fisher v. Hall 41 N. Y. 421, 422; Critchfield v. Critchfield, 24 Pa. St. 100; Rutledge v. Montgomery, 30 Ga. 641; Armstrong v. Stovall, 26 Miss. 275; Younge v. Gailbeau, 3 Wall 641.

3 Egeny v. Woodward, 56 Me. 45; Harrison v. Phillips Academy, 12 Mass. 455; Jackson v. Bard, 4 Johns, 230; Harman v. Oberdorper, 33 Gratt (Va.) 497; Hood v. Brown, 2 Ohio 267; Nay v. Mograin 24 Kan. 75. But see Smith v. Porter 10 Gray 67; Elsey v. Metcalf, 1 Denio, 323.

230.

4 Jackson v. Bard, 4 Johns 5 Boone Real Prop. 295. (Summary of principles governing delivery of deeds. Hulick v. Scovil, 4 Gilm, (Ill.) 59; quoted Hibberd v. Smith, 4 Pac. Rep. 480.) 6 Goddard's Case, 2 Rep. 4 b; Brown v. Brown 66, Me. 316; Fisher v. Beckworth, 30 Wis. 55; Younge v. Gailbeau, 3 Wall 641. (Until delivery of a conveyance with intent that it shall operate as a deed, it does not take effect and such intent may be a question of fact, to be ascertained from all the circumstances; Hibbard v. Smith, 4 Pac. Rep. 473.

7 See citations contained in succeeding note. 82 Wash. Real Prop. 577; Hawkstand v. Gatchell, Cro. Eliz. 835; and see Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592.

9 See Derby Canal Co. v. Wilmot, 9 East 360; Boone Corp. 54.

patent from the United States is title by record 10 and the delivery of the instrument to the patentee is not essential to pass the title."

Acceptance. A complete delivery of a deed requires its acceptance by the grantee, 12 but such acceptance is always presumed, 13 if the deed is found in the grantee's hands. 14

Yet under the rule that to constitute delivery of a deed there must not only be delivery by the grantor, but an acceptance by the grantee, there is no valid delivery where the minds of the parties seem never to have met upon the subject of the execution and delivery of a deed by a wife of her lands in settlement of her husband's defalcation as cashier of a bank; 15 as when neither before nor after the discovery of the deficit in the accounts of the cashier was there any meeting of the Board of Directors of the bank to consider the accounts; and at no time during the individual transactions of some of the directors with the cashier in relation to his accounts with the bank, or the possession of the deed by one of the Directors, did the Board of Directors at a regular meeting by resolution or otherwise authorize a settlement with the cashier upon the basis of a conveyance to the bank by his wife of her separate real estate. 16

When the question is as to whether a deed was delivered and accepted, and there is evi

10 United States v. Schurz, 102 U. S. 378, 397. 11 United States v. Schurz, 102 U. S. 378, 397; Boone Real Prop, 295.

12 Ward v. Winslow, 4 Pick 518; Stewart v. Redditt, 3 Md. 67; Corner v. Baldwin, 16 Minn. 172; Best v. Brown, 25 Hun. 223. Compare Commons v. Jackson, 10 Bush Ky. 424. (The assent of the grantee is a necessary element to the delivery of a deed whether the delivery be actual or constructive. Hibbard v. Smith, 4 Pac. Rep. 473.

13 See citations contained in next note.

14 Chandler v. Temple, 4 Cush. 235; Jones v. Swayze, 42 N. J. L. 279; Newlin v. Beard, 6 W. Va. 110; Southern Life Ins. Co. v. Cole, 4 Fla. 359; Boone Real Prop. 295; and see Little v. Ginson, 39 N. H. 501; Morris v. Henderson, 37 Miss. 501; Goodwin v. Ward, C. Baxt. (Tenn.) 107; Roberts v. Swearingen, 8 Neb. 363. (Greater presumption of acceptance in favor of infants; Rivard v. Walker, 39 Ill. 413.)

15 Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; S. C. 4 Pac. Rep. 106.

16 Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; s. c. 4 Pac. Rep. 106. Distinguishing Crowley v. Genesee Manufg. Co. 55 Cal. 275; McKieman v. Lenzen, 56 Cal. 61: Seeley v. San Jose etc. Co., 59 Cal. 23; Shaver v. Bear River etc. Co., 10 Cal. 400, Citing Gachwiles v. Willis, 33 Cal. 11; Blen v. Bear River Co., 20 Cal. 602.

dence showing that the grantor had the deed recorded, and the entire course of conduct of the grantee indicates an acceptance, a finding and judgment that there was a delivery and acceptance will not be interfered with, although there may be evidence to the contrary.17

20

Requisites of Delivery.-No set formulary of words or acts is necessary to a valid delivery:" 18 but it may be done by acts or words, or by both combined; 19 by the grantor himself, or by another by the grantor's precedent or assent subsequent; 21 and it may be made to the grantee personally," or to another authorized by the grantee to accept it,23 or to a stranger with a subsequent ratification. And it is immaterial, although the deed does not reach the grantee until after the death of the grantor, 25 if it was previously left with a third person for his use.26 constitute delivery good for any purpose, the grantor must divest himself of all power and dominion over the deed; 27 and it is with reluctance that the courts will uphold a deed executed by the grantor, but retained in his possession 28 to take effect after his death. 29

17 Vaughan v. Godman, 3 N. E. Rep. 257.

But to

18 Thoroughgoods' Case 9 Rep. 136; Hatch v. Bates, 54 Me. 139; Mills v. Gore, 20 Pick. 36; Verplanch v. Steny, 12 Johns. 536; 7 Am. Dec. 348.

19 Brown v. Brown, 66 Me. 316; Warren v. Sweet, 31 N. H. 332; McClure v. Colclough, 17 Ala. 89; Burkholder v. Casad, 47 Ind. 418.

20 See citations given in next note.

21 Brown v. Brown, 66 Me. 316; Foster v. Mansfield, 3 Met. 412; March v. Austin, 1 Allen 238; Mather v. Cortiss, 103 Mass. 568; Hathaway v. Payne, 34 N. Y. 92; Fisher v. Hall, 41 id. 416; Stephens v. Rinehart, 72 Pa. St. 434; Duncan v. Pope, 47 Ga. 445; Morgan v. Hezelhurst Lodge, 53 Miss. 674; Stone v. Duvall, 77 Ill. 475; Doe v. Knight, 5 Barn & C. 671.

See succeeding citations to this portion of sentence. Hatch v. Bates, 54 Me. 136; Stilwell v. Hubbard, 20 Wend. 44; Eckman v Eckman, 55 Pa. St. 269; Cin. etc. R. R. Co. v. Iliff, 13 Ohio St. 235.

24 Turner v. Whidden, 22 Me. 121; Brown v. Brown, 66 id. 316; Fisher v. Hall, 41 N. Y. 423; Chamberlain V. Woodward, 22 Hun. 440.

25 Boone Real Prop. 295.

26 Foster v. Mansfield, 3 Met. 412; Goodell v. Pierce, 2 Hill 659; Thatcher v. St. Andrews Church, 37 Mich. 264; McLean v. Nelson, 1 Jones L. (No. Car.) 396; Compare Fisher v. Hall, 41 N. Y. 416; Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592.

27 Young v. Gailbeau, 3 Wall. 641; Parmellee v. Simpson, 5 id, 81; Tilebals v. Jacobs, 31 Conn. 428; Oliver v. Stone, 24 Ga. 63.

28 Boone Real Prop. 295.

See Patterson v. Snell, 67 Me. 559; Sluntleff v. Francis, 118 Mass. 154; Jones v. Jones, 6 Conn. 111; 16 Am. Dec. 35; Ruckman v. Ruckman, 32 N. J. Eq. 259; Davis v. Williams, 57 Miss. 843; Mitchell v. Ryan, 3 Ohio St. 382; Huey v. Huey, 65 Mo. 689; Walker v.

Parting with Control, etc.-The term "delivery" implies a parting with the possession, and a surrender of authority over the deed by the grantor at that time, either absolutely or conditionally; 30 absolutely if the effect of the deed is to be immediate, and the title is to pass at once to the grantee, but conditionally, if the operation of the deed is made dependent on the performance of some condition, or the happening of some subsequent event. 32 And if the deed is subject to be recalled by the grantor, before delivery to the grantee, it is held to be no delivery on the part of the grantor, although he should die without recalling it.34

33

Delivery in Escrow.-Delivery to a stranger, for a third person, of an intended deed, of which delivery such third person is not informed, does not, by relation, when such third person accepts the deed, operate to defeat a right acquired under a judgment lien against the grantor between the time of delivery to the stranger and acceptance by the grantee. 35

Ineffective Delivery.-One of the essential requisites of a good deed is that it be delivered by the grantor or his attorney.

For a

Walker, 42 Ill. 311; Stone v. Miller, 16 Iowa 460; Newton v. Bealer, 41 id. 334; Burnett v. Burnett, 40 Mich. 361.

30 Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592; and see Merrills v. Swift, 18 Conn. 257; Jones v. Swayze, 42 N. J. L. 279; Bary v. Anderson, 22 Ind. 39. 31 Boone Real Prop. 295; and see 1 Bouv. L. Dict. tit. Delivery.

32 Prutsman v. Baker, 30 Wis. 644; 11 Am. Rep. 592; and see Hagood v. Harley, 8 Rich. (So. Car.) 325; Kane v. Machin, 17 Miss. 387; Gibson v. Partee, 2 Dev. & B. (No. Car.) 530; Henrichson v. Hodgen, 67 Ill. 179.

33 Cook v. Brown, 34 N. H. 460; Jacobs v. Alexander, 19 Barb. 243; Fitch v. Bunch, 30 Cal. 213.

34 Brown v. Brown, 66 Me. 316; Prutsman v. Baker, 30 Wis. 644; s. c. 11 Am. Rep. 592; Boone Real Prop. 295. But compare Delden v. Carter, 4 Day (Conn.) 66; s. c. 4 Am. Dec. 185; Woodward v. Camp, 22 Conn. 461; Hathaway v. Payne, 34 N. Y. 106.

35 Hibberd v. Smith, 4 Pac. Rep. 473. Subject in general. Harkreader v. Clayton, 56 Miss. 383; s. C., 11 Am. Rep. 594; State Bank v. Evans, 3 Green (N. J.) 155; s. c. 28 Am. Dec. 400; Miller v. Fletcher, 27 Gratt (Va.) 403; s. c. 21 Am. Rep. 356; Watkins v. Nash, Law R. 20 Eq. Cas. 202; s. c. 13 Eng. Rep. 781; Wheelwright v. Wheelwright, 2 Mass. 454; S. C. 3 Am. Dec. 66; Jackson v. Rowland, 6 Wend. 666; s. c. 22 Am. Dec. 557; Couch v. Meeker, 2 Conn. 302; s. c. 7 Am. Rep. 274; Chipman v. Tucker, 38 Wis. 43; s. c. 20 Am. Rep. 1; Patrick v. McCormick, 10 Neb. 1; Cotton v. Gregory, id. 125; Andrews v. Farnham, 29 Minn. 246.

36 Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; s. c. 4 Pac. Rep. 106. See subdivision on Necessity of Delivery.

deed taken effect only from its tradition or delivery; 37 and if it wants delivery it is void ab initio.88 Delivery is either actual, i. e. by doing something and saying nothing, or else verbal, i. e. by saying something and doing nothing, or it may be by both.39 And either of these may make a good delivery and perfect deed; for otherwise, albeit it be never so well sealed and written, yet is the deed of no force.40 And though the party to whom it is made take it to himself, or happen to get it into his hands, yet will it do him no good, nor him that made it any hurt, until it be delivered.41 And a deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority precedent, or assent or agreement subsequent for "omis ratihabitis mandato aequiparatus. But until the deed of a married woman is acknowledged and certified according to the statute it has, as therein prescribed, no validity and is not in a condition to be delivered or accepted; 43 and a deed which is delivered in presence of a notary without such formalities, and is thereafter acknowledged and certified before him, is void. Nor did a delivery take place when the notary handed the deed, as a completely executed document, to one of the directors of the bank to which it was to be given by the wife of a defaulting cashier, conveying her lands in satisfaction of his deficiency and in consideration of his restoration, where such director, on receiving it, promised not to deliver it until matters between the parties to it were arranged.45

42

87 See citations contained in next note.

38 2 Bl. Com. 308; Barr v. Schraeder, 32 Cal. 610. See further subdivisions on Necessity of Delivery. 39 See subdivision on Requisites of Delivery. 40 See subdivision on Necessity of Delivery. 41 1 Shepp. Touchst. 57.

421 Shepp. Touchst. 57; Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; s. c. 4 Pac. 106.

43 See Cal. Civil Code §§ 1186, 1187, 1191. "If a man seal and acknowedge before a mayor or other officer appointed for that purpose, a writing for a statute or recognizance, this acknowledement before such officer shall not amount to a delivery of the deed, so as to make it a good obligation, if it happen not to be a good statute or recognizance." 1 Shepp. Touchst. 58. 44 Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; s. c. 4 Pac. Rep. 106.

45 Bank of Healdsburg v. Bailhace, 3 W. C. Rep. 140; S. C. 4 Pac. Rep. 106. For the director thus became the depositary of the deed and the agent for the wife, in which capacity he had no authority to deliver it uneceived instructions from her to that effect. no such instructions were given to him,

he

Supreme Court of the United States, March 1,1886.

Habeas Corpus U. S. Courts Jurisdiction of-Prisoner under State Process.-The United States courts have jurisdiction to issue writs of habeas corpus în favor of persons restrained of their liberty under State process, or by any other authority when it is alleged under oath that they are held in custody in violation of the U. S. Constitition.

U. S. Courts-State Courts - Jurisdiction.-Congress has power to authorize the United States Courts to issue the writ of habeas corpus in favor of persons held under State process, and to discharge them when restrained of their liberty in violation of the United States constitution, but the State courts cannot exercise the same power in the case of persons held under U. S. process.

.

Prisoner under State Process - Discretion of Courts.-When a person is in custody under process from a State court having original jurisdiction, and it is claimed he is in custody in violation of the constitution, the U. S. Circuit Court has a discretion, whether it will discharge him in advance of his trial-that discretion to be subordinated to any special circumstances requiring immediate action. So after his trial, if he is convicted, it has a discretion, whether it shall discharge him by habeas corpus, or shall leave him to his writ of error from the highest court of the State.

Appeals from and in error to the Circuit Court

of the United States for the Eastern district of Virginia.

HARLAN, J. delivered the opinion of the court. On the 29 day of May, 1885, William L. Royall filed two petitions in the Circuit Court of the United States for the Eastern District of Virginia, each verified by oath, and addressed to the judges of that court.

In one of them he represents, in substance, that he is a citizen of the United States; that, in June, 1884, as a representative of a citizen of New York -who was the owner of certain bonds issued by Virginia under the act approved March 30, 1871, entitled: "An act to provide for the funding and payment of the public debt"-he sold in the city of Richmond, to Richard W. Maury, for the sum of $10.50 in current money, a genuine pastdue coupon, cut from one of said bonds in petitioner's presence, and which he received from the owner, with instructions to sell it in that city for the best market price; that said coupon bears upon its face the contract of Virginia that it should be received in payment of all taxes, debts, and demands due that Commonwealth; that he acted in said matter without compensation; and, consequently, the transaction was a sale of the coupon by its owner.

The petition proceeds:

"That on the second day of June, 1884, the grand jury of the city of Richmond, Virginia, found an indictment against your petitioner for selling said coupon without a license. That the before-mentioned coupon is the only one that your petitioner has sold. That your petitioner was thereupon arrested and committed to the custody of N. M. Lee, sergeant of the city of Richmond, to be tried on said indictment, and that he will be prosecuted and tried on said indictment for selling said coupon without a license, under the provisions of section 65 of the act of March 15, 1884, relating to licenses generally, and the general provisions of the State law in respect to doing business without a license. That your petitioner had no license under the laws of Virginia to sell coupons. That the act of the General Assembly under which your petitioner was arrested, and is being prosecuted, requires any person who sells one or more of the said tax-receivable coupons issued by said State of Virginia to pay to said State, before said sale, a special license tax of $1, 000, and, in addition thereto, a tax of twenty per cent. on the face value of each coupon sold.

"That said act does not require the seller of any other coupon, or the seller of anything else, to pay said tax, but it is directed exclusively against the sellers of such coupons. That your petitioner is being prosecuted under said act because he sold said coupon without having first paid to said State said special license tax, and without paying to her said special tax of twenty per cent. on the face value thereof. That said act of the General Assembly of Virginia is repugnant to section ten of article one of the constitution of the United States, and is therefore null and void. That if the said State

can refuse to pay the said coupons at maturity, and then tax the sale of them to tax-payers, she may thus indirectly repudiate them absolutely, and thus effectually destroy their value.

"That your petitoner has been on bail from the time he was arrested until now, but that his bail has now surrendered him, and he is at this time in the custody of the said N. M. Lee, sergeant of the city of Richmond, to be prosecuted and tried on said indictment. That he is held in violation of the Constitution of the United States, as he is advised."

In the other petition he represents, in substance, that, under the provisions of the before-mentioned act of 1871, Virginia issued her bonds, with interest coupons attached, and bearing upon their face a contract to receive them in payment of all taxes, debts, and demands due to that Commonwealth; that another act, approved January 14, 1882, provides that said coupons shall not be received in payment of taxes until after judgment rendered in a suit thereon according to its provisions; that the validity of the latter act was sustained in Antoni v. Greenhow, 107 U. S., upon the ground that it furnished tax-payers with a sufficient remedy to enforce said contract; that by the provisions of §§ 90 and 91 of chapter 450 of the laws of Virginia for the year 1883-84, it is provided that attorneysat-law who have been licensed to practice law less than five years shall pay a license tax of fifteen dollars, and those licensed more than five years twenty-five dollars, and that such license shall entitle the attorney paying it to practice law in all the courts of the State; that it is further provided by said 91st section that no attorney shall bring any suit on said coupons under said act of January 14th, 1882, unless he pays, in addition to the above-mentioned license tax, a further special license tax of $250; that petitoner had been licensed to practice law more than five years, and that in the month of April 1884, he paid twenty-five dollars, receiving a revenue license to practice law in all the courts of the State; but that he had not paid the additional special license tax provided for in said 91st section; that, under employment of a client who had tendered coupons, issued by Virginia under the act of March 30th, 1871, to the treasurer of Richmond city in payment of his taxes, and thereafter had paid his tax in money-the coupons having been received by that officer for identification and verification, and certified to the Hustings Court of the City of Richmond-he brought suit under the act of January 14th, 1882, to recover the money back after proving the genuineness of the coupons; that the grand jury of the city of Richmond thereupon found an indictment against him for bringing the suit without having paid the special license tax; that he brought it after he had paid his license tax above mentioned, and while he had a license to practice law until April 1885; that he was thereupon arrested by order of the Hustings Court of Richmond, committed to the custody of