The opinion
Upon petition for rehearing.
Thayer, J.
I have examined with some care the ably-prepared petition for rehearing filed herein by the counsel for the respondent, and have endeavored to' give it that consideration which the importance of the questions involved therein demand. The counsel inquire with considerable earnestness whether any one can imagine any reason for the giving of the written power of attorney by Seeley to Reed, at the time the stock was transferred by the former to the latter, excepting that it was understood and intended that Reed should transfer the stock as provided for in the power of attorney. Another inquiry might be made that would be as difficult to answer, and that is, why Seeley executed to Reed an absolute transfer and assignment of the stock, when it was understood and intended by *123 them that no title .to the stock was to pass from the former to the latter, beyond a right to sell it in case of a default in the payment of the $50,000 note, and an application of the proceeds to such payment. The assignment and delivery of the 361 -shares of stock, and execution of the power of attorney by Seeley to Reed, no more expresses their intention in the transaction than an absolute deed to real property from the former to the latter would, where a defeasance was given back. The deed by itself would constitute a complete conveyance of the property, but in connection with the defeasance, would be no conveyance at all; would be no more than a charge or lien upon the property. So the assignment and power of attorney, considered by themselves, would constitute a sale of the stock, with an immediate right upon the part of the purchaser to have a transfer made, from the-vendor to himself, on the books of the company; but, considered in connection with the agreement made and entered into by and between the parties at the same time, might have an entirely different character. It is certain that the assignment was not intended to have any effect except as a pledge of the stock, coupled with a right to sell it in case the note was not paid at its maturity; and I concluded, when the case was heard, that the power of attorney could have no operation until such sale were made; that it was only executed for the purpose of enforcing the security in case Reed was compelled to resort to it in order to obtain payment of the note; and I therefore.characterized Reed’s act in having the transfer made to himself upon the books of the company, by surrendering up the stock, and having new certificates issued to himself before the note became payable as a wrong. Whether that conclusion was correct or not must be determined by an ascertainment of the intention of the parties to the transaction, and that must be gathered from the assignment and transfer of the stock, the power of attorney, and the agreement entered into between them at the time. The said agreement contains a recital that Reed was about to advance to “the Oregon Iron and Steel Company” an amount of money, so that the total amount of his advances would aggregate $150,000; that Seeley was willing to take an *124 interest of $50,000 in the total advances made by Need, and had given his note, of even date with the agreement, to Need for said sum, payable two years from date, with interest, etc., and had delivered as collateral security for said note and interest, 361 shares of the capital stock, full paid, of said company. Therefore Need undertook, upon the full payment of the note and interest, to redeliver to Seeley said shares of stock, together with one third of such bonds, etc., as he should receive from said company, in consideration of his said advances; and Seeley, in consideration thereof, authorized and empowered Reed, upon default of the payment of said note at the maturity thereof, together with the accumulated interest thereon, to sell or dispose of, at public or private sale, and in such a manner and on such terms as to the said Reed would seem best, the said 361 shares of stock. Any one having any knowledge whatever of business affairs would know at once that this agreement was the substratum of the transaction between the parties, and that the assignment and transfer of the stock, and execution of the power of attorney, which it appears was signed in blank, were for the sole purpose of carrying out the provisions of the agreement, and it seems to me that, to term this assignment and transfer of the stock anything other or different than a pledge, would be a misnomer. It is well understood that such character of property is capable of being pledged as well as sold, and that the general law relating to that subject applies to such a pledge. Reed’s duty in the matter, under the law and under the agreement was, upon full payment of the note and interest, to redeliver to Seeley the 361 shares of stock; no authority was given him in the agreement to surrender them to the company, and receive other certificates in his own name. He could not become the owner of the stock by a transfer to himself, and no more, in my opinion, had he the right to clothe himself with the apparent ownership of it. He had authority to sell it, in case the note and interest were not paid when due, and make a transfer to the purchaser upon the books of iiie company. The power to make such transfer, it seems to me, was only to complete the sale, in case the event transpired authorizing him to make the sale. Counsel, how *125 ever, claim that it was necessary in order to protect his security, that the transfer upon the hooks be made to him at once; that otherwise Seeley’s creditors might come forward and attach the stock and cut off the security. They do not explain how Seeley was to be protected against Reed’s creditors, in case the stock is registered in the latter’s name. I do not see how Seeley, especially under the view of counsel, that the registry of the stock passes the legal title, could have any protection. Reed would have the title, and his creditors, if he had any, could sequester it with impunity. It would not be necessary for them to prove that they trusted him upon the faith that he was the owner of the stock, as he would be owner in fact. But I do not think that, “ unless Reed had the right to transfer the stock to himself upon the books of the company under said power of attorney, his collateral security would be of any more value to him than a chattel mortgage unrecorded, and concealed in his pocket;” or that, “prior to the time when the transfer was made upon the books of the company, any creditor of Seeley might have attached the stock, or have seizéd it upon execution, or Seeley might have sold it to a bona fide purchaser.” There have been, I confess, a number of decisions to that effect, but the weight of authority is the other way. Mr. Cook of the 'New York bar, in a late work on the Law of Stock and Stockholders, says (§ 487): “The decided weight of authority holds, that he who purchases for a valuable consideration, a certificate of stock, is protected in his ownership of the stock, and is not affected by a subsequent attachment or execution levied on such stock, for the debts of the registered stockholder, even though such purchaser has neglected to have his transfer registered on the corporate books, thereby allowing his transferror to appear to be the owner of the stock upon which the attachment or execution is levied.” And this author cites a large number of authorities in support of that rule.
The decisions upon the question in the different States, and in many of the States themselves, have not been in harmony. The language of Chief Justice Shaw, in Fisher v. Essex Bank, 71 Mass. 373 , quoted in the counsel’s petition, “that shares in a *126 bank whose charter provides that they shall be transferable only at its banking-house, and on its books, cannot be effectually transferred, as against a creditor of the vendor who attaches them without notice of the transfer, by a delivery of the certificates, together with an assignment and blank power of attorney from the vendor to the vendee, even if notice of the transfer be given to the bank before the attachment,” instead of being authority in favor of the counsel's position upon the point, is considered in the light of the other decisions in that State, directly against it. In Sibley v. Quinsigamond National Bank, 133 Mass. 515 , it is shown that Judge Shaw's decisions in Fisher v. Essex Bank was controlled by the statutes of that State expressly applicable to bank shares. Judge Allen, who delivered the opinion of the court in Sibley v. Quinsigamond, at page 521, says: “In Fisher v. Essex Bank the question was, what was the intention of the legislature of this State in using similar words (referring to the provision in the federal banking act, that the stock shall be transferable on the books of the bank in such a manner as may be prescribed by its by-laws), and the court found in the general spirit and scope of the legislation of this commonwealth, as to the attachment of shares in corporations, and in the particular legislation as to the attachment of bank shares, evidence that the legislature intended by the words ‘the stock of said bank shall be transferable only at its banking-house, and on its books,' to enact that an assignment not so recorded should not be valid against attaching creditors of the assignor.” Those statutes not only made the shares of any stockholder liable to attachment, but made it the duty of the officers of any corporation keeping its records to give a certificate of the shares or interest of any stockholder, on request of any officer having a writ of attachment or execution against such stockholder. “But,” he says, “the statute under consideration for construction is a statute of the United States, in whose legislation no such policy existed, and whose legislative acts contained no provisions such as were referred to from the legislation of Massachusetts.” And in Boston Music Hall v. Cory, 129 Mass. 436, 437 , Judge Colt, in delivering the opinion *127 of the court, says: “ In the next place it is strenuously urged that, by force of the various statutes of this commonwealth relating to the ownership and transfer of stock in corporations, authorizing the attachment of shares, requiring returns to the secretary of the commonwealth, and imposing a personal liability on stockholders for the debts of the corporation, there can be no transfer of stock, valid against the claims of an attaching creditor, unless such transfer be recorded in the books of the corporation, citing the statutes. The intent of the legislature, it is said, must have been to provide for the owners of stock a convenient and uniform method of transferring title on the books of the corporation, which should be the only valid transfer as to creditors and others interested; and although the statutes have not provided in express terms that, as to creditors, transfers shall not be valid until they are so recorded, yet such, it is contended, is the necessary implication, for otherwise, the design of the statutes requiring registration and making the shares liable to be taken for debts would be defeated. But the consideration is not sufficient to control the law as long since settled by the decisions of this court. It requires clear provisions of the charter itself, or of some statute, to take from the owner of such property the right to transfer it in accordance with known rules of the common l¿w. And by those rules, the delivery of a stock certificate, with a written transfer of the same to a bona fide purchaser, is a sufficient delivery to transfer the title as against a subsequent attaching creditor.” Citing several cases, including Fisher v. Essex Bank , the learned judge further adds, that “ it would not be in accordance with .sound rules of construction to infer from the provisions of several different statutes, passed for the purpose of obtaining information needed to secure the taxation of such property, or for the purpose of subjecting stockholders to a liability for the debts of a corporation, or for protecting the corporation itself in its dealings with its own stockholders, that the legislature intended thereby to take from the stockholder his power to transfer his stock in any recognized and lawful mode. If a change in the mode of transfer be desirable for the protection of creditors, or for any other *128 reason, it is for the legislature to mate it by clear provisions, enacted for that purpose.”
It is evident from these cases that Judge Shaw, in the absence of the peculiar provisions of the Massachusetts statutes referred to, would have held the direct opposite of the holding set out in the petition. That under the statutes of this State upon the subject, it may reasonably be supposed he would have decided the same way the court did in Boston Music Hall v. Cory, supra; such has been the current of decisions in the federal courts, and I am of the opinion that in the best considered cases the same result has been reached. In support, of that opinion I cite, with great confidence, Smith v. Crescent City etc. Co. 30 La. An. 1378, and Cormick v. Richards, 3 Lea (Tenn.) 1. Judge Davis, in Bank v. Lanier, 11 Wall. 377, 378 , stated explicitly what kind of security Need had when Seeley deposited said certificates of stock with,him, when he said that, “although neither in form nor character negotiable paper, they approximate to it as nearly as practicable. If we assume that the certificates in question are not different from those in general use by corporations, and the assumption is a safe one, it is easy to see why investments of this character are sought after and relied upon. No better form could be adopted to assure the purchaser that he can buy with safety. He is told, under the seal of the corporation, that the shareholder is entitled to so much stock, which can be transferred on the boobs of the corporation, in person or by attorney, when the certificates are surrendered, but not otherwise. This is a notification to all persons interested to know, that whoever in good faith buys the stock, and produces to the corporation the certificates, regularly assigned, with power to transfer, is entitled to have the stock transferred to him. And the notification goes further, for it assures the holder that the corporation will not transfer the stock to any one not in possession of the certificates. In this state of the case, Lanier and Handy made their purchase of Culver. They bought for value, without knowledge of any adverse claim, in full faith that the bank would observe its engagements, and pursued iu all respects the directions given in the certificates. They were not *129 told to give notice to the bank of their purchase, nor was there any necessity for notice, because, by the rules of the bank, Culver could not transfer the stock in the absence of the certificates, and these they had in their possession.” Eeed being a pledgee instead of a purchaser of the stock did not render it more necessary that it should be registered in his name in order that his rights in the transaction should be protected. Holding the certificate without such registry would be more consistent and less liable to the imputation of fraud, in the case of a pledge than of a sale. But I am satisfied that in neither case could his rights be affected by any act done or suffered by Seeley subsequent to the delivery over to him of the stock, although no transfer was made upon the books of the company. Reed cannot, therefore, claim that it was necessary to his protection against the creditors of Seeley, or against the acts of Seeley himself in selling the stock to, a purchaser without notice, that such transfer be made. The former had a right to have a transfer made upon the books of the company, but it seems to me that it was only a conditional right, that the parties did not intend that it should be exercised except in event of the non-payment of the note. They seem to have acted in accordance with such intention. Reed did not have the transfer made for more than a year and a half after the execution of the assignment, and in the mean time Seeley voted the stock. The transfer upon the books would put it out of the power of the latter to receive the dividends that might accrue thereon, and at the same time he had obligated himself to pay the interest upon the note semiannually, at the rate of seven per cent per annum. I can see no justice in the right which Mr. Reed sets up. Counsel have cited a number of authorities to show that he had a right, as pledgee of the stock, to fill the blank in the assignment and have it transferred to himself. I have examined the most of these authorities, and do not think them decisive of the question under consideration, or as having much to do with it. Day v. Holmes, 103 Mass. 310 , one of the cases cited, was an action for the wrongful conversion of certain mining stock, delivered by the defendant to the plaintiffs as collateral security for his *130 iudebteduess to them, with an assignment in blank, which the plaintiiis filled by inserting their own names, and obtained new certificates to be issued to themselves. This, the court said, was in no sense a sale of the stock to themselves; that the delivery of the assignment in blank necessarily, implied the 'right to insert their own names, and the doing so, and taking out new certificates, was in accordance with the implied contract of the parties, and a lawful and reasonable measure -to protect their security, and could,- upon no principle, be deemed an unlawful conversion. The gist of the decision is, that the plaintiffs were not chargeable with a wrongful conversion of the stock in consequence of the filling the blank assignment and having the new certificates issued to themselves; that it was in accordance with the implied contract of the parties. It will be observed that the court also said in that case, “that it was obviously not the intention of the plaintiffs to exercise any dominion over the stock inconsistent with the rights of the defendant,” that “ his rights were not in fact violated or injuriously affected.”
If it had appeared to the court that the plaintiffs were largely interested in the corporation that issued said stock, that their apparent object, and purpose in filling the blank assignments with,their own names, and having the new certificates issued,to .themselves, was to enable them to represent the stock at stock'holders’ meetings, vote it in opposition to the wishes of the •.defendant, and in order to secure the election of themselves and ■friends to the directorship of the corporation, and thereby control the management of their affairs, it would not certainly have commended the act, nor, in my opinion, have determined that .they could rightfully use tlie defendant’s stock to further any .such design. McNeil v. Tenth National Bank, 46 N. Y. 330 , another of the cases cited by counsel, was an action to compel the surrender of 134 shares,of stock in the First National Bank of St. Johnsville. The plaintiff-owned the stock, and delivered "it to, and left 'it with 'Goodyear Bros, and Durant, stockbrokers, as collateral security for any balances that might be found due them on account of other stock they had purchased and were carrying for him. A blank assignment and power of *131 attorney to transfer the 134 shares was indorsed thereon, and signed by the plaintiff at the time of its delivery. Afterwards the defendant, at the request of Goodyear Bros, and Durant, paid to Fred. Butterfield, Jacobs & Co. the sum of §45,135, and received from the former certain securities, including the 134 shares of stock as security, for the advances. Goodyear Bros, and Durant, at the time of the advances to Fred. Butterfield, Jacobs & Co., were insolvent and indebted to the defendant. In pledging the plaintiff’s shares of stock, they acted without actual authority from him, and without his knowledge. He was indebted to them in the sum of $3,000, but the account had not been rendered, or any demand made; the defendant, at the time of receiving the shares, had no knowledge of the plaintiff’s interest therein. The defendant filled in the blank of the assignment and power with the name “I. H. Stout” its cashier, and attempted to have the shares transferred to his name on the books of the said First National Bank of St. Johnsville, but was prevented by injunction in the action. The balance of the advances made thereon by the defendant, less the proceeds of the other securities received therewith, was $15,219.81, and the question for the court to determine was whether defendant was entitled to hold the 134 shares for the payment of this balance. The court of appeals held that it was; that the plaintiff by executing the blank assignment and power was, as against the defendant, estopped from asserting. his ownership to the stock where the latter had made advances under the circumstances mentioned; that the signing of the blank assignment and power, and delivering the stock, was the common practice of passing the title of stock, and that it conferred upon Goodyear Bros, and Durant the apparent title thereto. The question was not as to the rights of the immediate parties to the assignment and power of attorney, but as to the rights of third persons who had advanced money upon the faith of them. If Reed had sold the 361 shares in controversy to an innocent purchaser, there is no doubt but that such purchaser would have acquired a valid title to them. But a pledgee of the stock, as between himself and the pledgor, would have no such right. Chancellor 'Wal- *132 worth, in Commercial Bank of Buffalo v. Kortright, 22 Wend. 347 , used the following language: “The stock was not sold to Bartow, but was merely pledged for the security of $10,000. He therefore had no legal right to fill up the blank with an absolute sale to himself, and a power to transfer it on the books of the bank absolutely. If the debt was not paid, he had a right to sell the pledge to a third person, after due notice thereof to Barker’, and then have been authorized to fill up the blank Avith an absolute sale to such purchaser, and a power to transfer the stock to such purchaser on the corporation books, as that would be according to the agreement inferred from the pledge of the certificate with such blank indorsement.” In that case the rights of a bona fide transferee were involved, who had sued the bank for refusing to permit a transfer of the stock upon its books, and the decision was placed on similar grounds to that in McNeil v. Tenth National Bank, supra; but the view enunciated by the chancellor upon the point referred to was not questioned as a logical sequence, and there is nothing, as I can see, in the way of its application to the case under consideration. The question here is between pledgor and pledgee. The obligations of each are fully set out in a written agreement.
The object of the formal assignment and power of attorney relating to the shares of stock was evidently to effectuate and carry out the purposes of the agreement; and the evident and unmistakable aim of the relator was to gain control and dominion over the shares of stock pledged, in order to enable him to retain the management of the affairs of the company, and without regard to the maintenance and protection of his security. That he had a right to have the shares transferred upon the books of the corporation, for the better protection of his security^ except as before suggested, is very questionable to my mind; but that he had such right for the purposes of advancing his general interest, I do not believe; cannot think that the transaction between him and- Seeley, in view of all the facts, indicates any such intention on the part of the parties, and I must still adhere to my former bluntly-expressed opinion upon that point. I do not mean to be understood as holding that a pledgee of capital *133 stock in a corporation has not a right to have it transferred to him upon the books of the corporation. Many authorities, in referring to the matter in a general way, accord the right unqualifiedly, and I have met with others that deny it. In Smith v. Crescent City etc. Co. 30 La. An. supra, the court at page 1383, in referring to the convenience and value of such stock as a basis of credit, says: “ The holder who does not wish to sell may pledge his certificates for loans and discounts to an amount approximating their market value, with reasonable margin for possible depreciation. The pledgee does not desire to become the owner of the stock; and he would not think it necessary, nor would he have the right to surrender the pledged certificates, and have the stock transferred to him on the books of the corporation.” The court here evidently meant that such right did not arise out of the mere act of pledging, and I think that would be correct except where the transfer -was necessary to the completion of the pledge. A pledgee cannot be the purchaser of the thing pledged, when sold to satisfy the debt (Bryon v. Baldwin, 52 N. Y. 232 ), and he could certainly have no right to have a transfer made to himself upon the books of the corporation, unless specially granted by the pledgor; pledging the shares of stock would not of itself confer the right. McHenry v. Jewett, 33 N. Y. Sup. Ct. 453, is decisive of that point. . In that case shares of the capital stock of the Cleveland, Columbus, Cincinnati, and Indianapolis Railway Company were pledged by the plaintiff, their owner, to the Erie Railway Company, to secure a loan of money, and by means of certain foreclosure proceedings against that company they were transferred, subject to the plaintiff’s right of redemption, to the New York, Lake Erie, and Western Railroad Company. The sale under this foreclosure was made in 1878, and since that time the defendant had held the shares nominally as trustee for the last-named company. By what authority they were registered in his name as trustee had not been made to appear. It was not shown to have been done under the authority of the plaintiff in the action. “For that reason,” the court said, “the defendant must be regarded as holding the shares solely under the authority created by the *134 pledge, and having no greater right to make use of, or act upon them, than the relation of a mere pledge would confer. As between himself and the plaintiff in the action, that continued to be the sole measure of his rights. As the defendant had the shares simply by way of pledge or security for the repayment of money which had been loaned upon them, he could hold them only for that purpose, as long as the rights of the plaintiff to redeem them by the payment of the debt was not extinguished by a lawful sale.” (Lawrence v. Maxwell, 53 N. Y. 19 .) “They are articles of property which under such an arrangement could not be otherwise lawfully used, and, under the authorities, the defendant had no legal right to vote upon them without the express or implied assent of the plaintiff, the pledgor. This point was considered in Scofield v. Union Bank, 2 Cranch C. C. 115; Vowell v. Thompson, 3 Cranch C. C. 428; Ex parte Wilcocks, 7 Cowen, 402. In the last case it was held that, until the pledge was enforced and the title made absolute in the pledgee, and the name was changed on the books, the pledgor should be received to vote; that it was a question between him and the pledgee with which the corporation had nothing to do.” (Ex parte Wilcocks, 7 Cowen, 411.) “These eases are direct and decided authorities against the right of the defendant to vote upon the shares, and the principle sustained by them has in no respect been impaired by the Matter of Baker, 6 Wend. 509 , or the Mohawk and Hudson Railroad Company, 19 Wend. 135 , for the disputes which were then made the subject of adjudication did not arise between parties sustaining the relation existing between the plaintiff and the defendant to this action. It was simply made a question between a person offering to vote, who was registered as trustee of the shares in the first case, and described as cashier in the second, and the corporation, -whether such registry of stock authorized the person in whose name it had been made to vote upon it. No point was made in behalf of the party beneficially interested in the shares, and for that reason, the cases are inapplicable to the present controversy; for here it has been shown that the defendant, in whose -name the shares had been registered as trustee, has no greater or other *135 right than that of a pledgee, which under the authorities determining the effect of that relation, will not permit him to vote upou them against the objection of the plaintiff, who is still to that extent entitled to dictate and direct the use which may be made of them.”
The opinion of the court in the case from which this rather extensive quotation is made was delivered by Judge Daniels, who, for nearly twenty-five years past, has been upon the bench of the Supreme Court and court of appeals of New York, and whose knowledge of the various decisions of the courts of that State, and ability to discriminate between analogous ones, is not excelled by any jurist. Said opinion was concurred iu by Judges Davis and Brady, the former of whom delivered the opinion in the New York and New Haven Railroad Company v. Schuyler, 34 N. Y. 41 , to which the counsel have referred in their petition apparently with great confidence. A distinction is made in MeHenry v. Jewett, which, in the examination of the question under consideration, is liable to be overlooked, and that is the difference in principle between a case where parties claim a right to represent stock -and it is challenged by the corporation, and one where the contention is between parties beneficially interested in stock, as to which is entitled to represent it.
The corporation might not have any right to refuse to allow a party to be registered as a stockholder in the company, and to participate in the affairs of its business, while another party might very properly object to it as the exercise of unwarranted authority and a fraud upon his legal rights. A corporation is no such sacred sanctuary as is able to shield those gaining admission to it from the responsibility imposed by law. Getting shares of stock transferred to a person upon the books of the corporation does not preclude the courts from inquiring, when the matter is properly before them, by what right the transfer was made, and what immunities it confers. The records of corporation proceedings are not absolute verity, or conclusive of the right of parties under the law. Thej'- may show that a person is a stockholder in the company and entitled to vote shares of stock, when the courts, upon an investigation of the facts, would adiudge the *136 contrary. The question as to who has the right to vote shares of stock must ultimately be determined by law, and as between pledgor and pledgee, it has been long since established that the right belongs to the former unless accorded by him to the latter. A stipulation to that effect upon the part of the latter, or from which it would necessarily be implied, would doubtless confer the right; but as said in McHenry v. Jewett, it is a question between the two parties with which the corporation has nothing to do.
Qualification of director. Upon the question whether an assignee of a share of stock is a stockholder in the company so as to be eligible to the office of director before a transfer of the stock is made upon the books of the company, I can see no reason to change my former view. The language of Rapallo, J., in Neil v. Tenth National Banh, quoted by the learned counsel for the petitioner, “that as between the parties, the delivery of the certificate, with assignment and power indorsed, passes the entire title, legal and equitable, in shares, etc., and that the transferee acquires the entire right to the stock, subject only to such liens or claims as the corporation may have upon it, and excepting the right to vote at elections,” etc., is more in favor of that view than against it.
If it were a case where the legislature had provided that the stock should be transferable only on the books of the company, the position contended for by the counsel might be tenable; but where that is only required as a compliance with the by-laws of the company, to facilitate the management of its affairs, I cannot think it is. It seems to me that a sale of a share of stock to a party, evidenced by a written transfer and delivery of the certificate, constitutes him, under the laws of this State, a stockholder within the meaning of the statute, providing that no person is eligible to the office of director unless he is a stockholder in the corporation. Who could be the stockholder in such case except the purchaser of the share? Certainly not the seller, after having sold it, received the purchase price therefor, delivered over the certificate with a written assignment indorsed thereon, and done every act in his power to render the sale complete, although *137 his name still remained upon the books of the company as owner. It might, with full as much reason, be claimed that the grantor of real property continued the owner of the fee until the grantee recorded his deed from the former. The grantor, in fact, has power over real property after executing the deed in such a case, which the vendor of stock does not possess over a share so transferred. The former by again selling the real property to an innocent purchaser might cut off the right conveyed to his first grantee, while the vendor of the stock, after delivering over the certificate with the assignment indorsed, would be wholly powerless to affect his first vendee by a second sale. The books of the corporation are evidence as to who are the holders of the stock; but not conclusive evidence upon that point. The law must ultimately determine the question from all the facts in the case. It would be carrying the doctrine of nicety to an absurd extent, to hold that a party, although he had sold out his entire stock in a corporation, or where it had been sold out upon a lawful execution against him, would still have the right, if the transfer had not been made upon the books of the company, to manage its most important affairs in defiance of the real substantial owner of the stock. Yet it seems to me that the rule contended for by the counsel, if carried out to its logical sequence, would necessarily, under certain conditions that might arise, lead to such results.