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cates for single shares, either in his own name or in the name of some fictitious person closely resembling the name of some one from whom he was in the habit of borrowing money.
He would then borrow money, offering as collateral shares in this corporation, which he would undertake to have transferred to the lender's name ; and he would bring him a certificate so altered as, for example, to make that which was originally a certificate that John Ferrer was the owner of one share, a certificate that John Ferris was the owner of one hundred shares, dates being altered to correspond. The alterations were most clumsily executed; but Coe's credit was very good, and lenders took his certificates without examination. Having occasion to borrow money from the Massachusetts Bank, he gave, as collateral for a loan of twenty-two thousand dollars, a certificate of stock in the Boston and Albany Railroad Company, which had been raised from two, to two hundred shares, and which was made out to the bank directly. This loan he afterwards paid ; and when his collateral was returned, the cashier of the bank signed the blank transfer on the back of the certificate merely for the purpose of retransferring to Coe his stock. Coe afterwards borrowed twenty-five thousand dollars of Matthews, and gave him as collateral the same certificate, bearing the indorsement of the bank. Before the loan to Matthews was repaid, the forgery was discovered. Matthews thereupon brought an action of contract against the bank, his declaration containing the common counts and a special count, in which he claimed to recover on the ground that the bank by indorsing the certificate warranted that it was genuine. The case was argued at the May term of the court, and SHEPLEY, J., has now decided in favor of the plaintiff. For the following abstract of his opinion we are indebted to the Boston Daily Advertiser :
The real question presented in the case is whether the bank, by signing the blank transfer, has so far warranted the genuineness of the certificate that it is estopped from setting up the forgery as a defence to this action.
Defendants deny that the cashier had authority or right to bind the bank by the contract declared on.
Cashiers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business conducted by the bank. Their acts, within the scope of such usage, practice, and course of business, will, in general, bind the bank in favor of those persons possessing no other knowledge. Merchants' Bank v. State Bank, 10 Wallace, 604. One of the ordinary and well known duties of the cashier of a bank is the surrender of notes and securities upon payment, and his signature to the necessary transfers of securities or collaterals when in the form of bills of exchange, choses in action, stock certificates, or similar securities for loans, which are personal property, is an act within the scope of the general usage, practice, and course of business in which cashiers of a bank are held out to the public as having authority to act.
The signature of the cashier is, therefore, to be considered the signature of the bank; and the question returns, whether such bank assignment on the back of the certificate by the bank is so far a warranty of the genuineness of the certificate that the bank is estopped from setting up the forgery as a defence. In the case of forged negotiable instruments, it is well settled that the indorser warrants that the instrument itself and the antecedent signatures thereon are genuine. The indorser's liability in other cases is properly placed upon the ground of estoppel; and the reasoning which supports this rule of law would seem to apply with equal force and pertinency
to the case of a transfer of a certificate of stock by indorsement in blank. Stock certificates are sold in open market like other securities, and form the basis of commercial transactions. The common practice of passing the title to stock by delivery of the certificate, with blank assignment and power, has been repeatedly proved and sanctioned in cases which have come before the courts in New York.
The certificate in this case, as it came from the bank, contained on the same piece of paper, and on the back of the certificate, a blank assignment, which was all that was necessary to transfer the title of the stock as between the parties. The defendants must, therefore, be held to have intended and agreed that whoever should present the certificate as issued from the bank, with the assignment executed in blank, should be entitled to fill up the blanks with his own name, and to have a transfer of the stock made to himself on the books of the company. The certificate, accompanied with the transfer, executed in blank, was a species of negotiating of a peculiar character, but one well recognized in commercial transactions and judicial decisions, and absolutely essential, in the usage and necessities of modern commerce, to make such certificates available in commercial transactions. The signature is given for the purpose of transferring title ; and whenever a blank is filled, a contract of sale is established between the party who has signed the blank assignment and the person whose name is rightfully filled in as assignee.
The certificate purports to be a certificate that the bank held the shares as collateral, but does not show that they were collateral for a debt of Coe's to the bank. Such a certificate might, in the ordinary course and usage of dealing in stocks, pass through the hands of many successive purchasers. The possession of the certificate would afford no indication that the holder of it was the person who had originally transferred it to the bank as collateral. The mere words “as collateral," in the instrument, do not tend to put the purchaser on inquiry, except so far as it relates to the authority of the bank to dispose of the collateral, as between the bank and its debtor. If this inquiry had been made, it would only have resulted in the information that the assignment was made in its actual form by the joint act and consent of the bank and the debtor. The name of the pledger was not stated in the certificate, as required by the Massachusetts statute.
Nor can the bank contend, with any show of reason, that Matthews was negligent in not inquiring at the office of the railway corporation. If the duty of making such inquiry was incumbent upon any one, it was surely incumbent upon the bank to ascertain the genuineness of the instrument before they gave currency to it, and lulled suspicion and doubt by the responsibility of their own signature. The answer to all the positions taken by defendant, as to notice to Matthews from the words “as collateral” in the instrument is, that there is nothing to connect Coe with these words, there is nothing on the face of the paper, and there was nothing in the fact of the possession of the instrument by Coe to show that he was the person for whose debt the stock was held as collateral.
The negligent act which specially imposes upon the defendants a liability in this case is that they delivered the forged instrument to Coe authenticated by their signature in blank to a transfer, thus giving to it a currency and respectability which it would not have possessed had they made the transfer directly to Coe. Thus this bank put it in the power of Coe to commit the fraud on Matthews, on which the suit is founded. The bank substituted their trust in the honesty of Coe for the control which the bank should have exercised itself over the transfer of the instrument, and should suffer the loss consequent upon his betrayal of the trust, rather than to suffer it to fall upon an innocent stranger.
One of two innocent parties must suffer in this case by the frauds of Coe.
Under similar circumstances, courts have repeatedly held that the party must suffer who has exhibited the greatest degree of negligence. The bank is precluded from setting up the fact of the forgery of the instrument, because it would be a wrong on its own part, and an injury to others whose conduct has been influenced by the acts and omissions of the bank. An estoppel is a salutary rule which prevents a man from proving that to be false which he has once represented to be true when others have acted on the faith of his representation.
The fact that Matthews has also a right of action against Coe, who is a convict and a bankrupt, does not preclude him from a remedy against the bank.
Upon the facts, as agreed in this case, the plaintiff is entitled to judgment, and, according to the agreement of parties, the case is to be referred to an auditor to assess the damages.
This decision will be received with some surprise by the business community, and perhaps by the profession, for it has not generally been supposed that by signing a blank transfer, particularly under such circumstances, a person rendered himself liable as indorser. The question cannot be regarded as settled, for the case has been carried to the Supreme Court.
EXTRADITION.-UNITED STATES Circuit Court. In re Peter Kelley. In this case Judge LOWELL has set the precedent for this district that the court will issue a warrant on complaint under the extradition treaties, without the delay necessary to obtain an executive mandate. This seems to us consonant with the true intrepretation of the treaty and statutes, and it is hard to see how any other course could have obtained. The complaint w..s sworn to by the British consul, alleging that the defendant had committed murder on the high seas, on board a British schooner. After hearing the evidence, Judge LOWELL gave the following opinion:
LOWELL, J. - I feel bound to explain why I issued my warrant on the sworn complaint of the consul without waiting for an executive mandate. The practice established in the second circuit, which includes the city of New York, where these cases more frequently occur, requires such a mandate. But a careful examination of the origin of the practice, and of the reasons for its adoption, have satisfied me that it ought not to be followed in a case now arising in another circuit.
In Kaine's Case, 14 Howard, 103, a practice was approved by four of the judges which seemed to three of their brethren to be dangerously loose ; and the point now under review was one of those upon which they differed. Both sides were argued by the judges, with great ability ; but the questions were not decided, because one of the eight judges joined with the four in denying the writ of habeas corpus, upon a point which did not touch the merits. When, therefore, the case came back to the circuit, Mr. Justice Nelson felt bound to follow his own convictions (Kaine's Case, 3 Blatch. 1), and that case has of course been taken as a precedent in the circuit. Herrick's Case, 5 Blatch. 414; Farez's Case, 7 St. The matters of evidence upon which he commented have been corrected by legislation (St. 22 June, 1860, 12 Stats. 84); but Congress has made no change in the practice now in question.
It is plain, from a study of the opinions of the learned judge in the Supreme Court and on the circuit, that he thought there was danger of these cases becoming a matter of mere routine. The key to his whole protest is found upon p. 139 of 14 Howard, where he expresses this fear. He insisted, very properly, that extradition might involve questions of great delicacy and of political consequence, upon which the deliberate judgment of the President ought to be exercised. All this is true; but
both the treaty and the statute provide for such a judgment, though they contemplate that it should be made up after and not before the judicial investigation, as it evidently should be, not only to diminish the chances of the escape, but also that the whole case should be prosecuted before the final authority shall be called in to decide it. The treaty says: “The respective judges, &c., shall have power, jurisdiction, and authority, upon complaint made upon oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges, or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive."
The statute follows the treaty almost literally, but guards against the inference which might be drawn from the concluding words which I have cited, that the duty of the executive is merely ministerial, by adding that the judge shall certify all the evidence, as well that originally submitted as that taken before him at the hearing, to the Secretary of State. 9 Stats. 302.
Now, it is apparent that the only possible occasion for certifying all the evidence is that the Secretary and President may exercise their own judgment upon it, and accordingly we find that this is done. In the recent case of Carl Vogt, reported 18 Int. Rev. Record, 28, the Secretary overruled a learned judge on a question of law, and refused a warrant, which the judge had decided to be demandable, as of right, under the treaty with Prussia. Whether this practice was adopted in deference to Judge Nelson's vigorous argument I know not; but it is sound, and meets his objections, and that at the true point of time, when only a decision can be rendered with a full understanding of the case.
It is true, as is remarked by Nelson, J., that the English statute takes up the matter by the other end, and requires an executive warrant to precede the examination by the magistrate ; but this is a clumsy and imperfect mode, and is strongly objected to by a judicious and learned English writer, the only one who has treated this subject. After mentioning the imperfect operation of the English law and some remedies which had been suggested, this writer says: “The principal cause of the practical failure of the treaties is felt at an earlier stage of the proceedings. At present a demand has to be made upon the English government, and documentary evidence submitted to the Secretary of State. His warrant being issued, an applicacation has then to be made to a magistrate."... He goes on to show how much opportunity this course of proceeding gives for the escape of the criminal; and says that out of four cases in whicb the executive writ was granted under the convention with France, it was after so long an interval that only in a single case was the fugitive surrendered. “ The obvious remedy for this,” he adds, “would be to give to any magistrate the power of issuing a warrant of arrest upon complaint made before him, without any previous authorization from the Secretary of State. This is the law in Canada, and has there been found to produce no ill result.” Clarke on Extradition, pp. 107 and 108.
Turning to the law of Canada, which is given on page 53 of the same treatise, we find language almost identical with that in our trea'ies and statute, giving power to magistrates to issue the warrant; and it is preceded by a recital that this mode is adopted "for preventing the escape of any person so charged, before a warrant can be obtained from the governor.”
This law had been in force in Canada for years before the treaty with Great Britain was made, in 1812 ; and I have little doubt that the mode of proceeding pointed out by the treaty and followed by the statute was adopted for the very pur
pose of preventing the annecessary and dangerous delays, and the virtual severing of the true order of things which followed from making the executive examination first, and the judiciary afterwards.
In such a case as is now before me, of a seaman brought into one of our ports at the end of a voyage in the progress of which the crime had been committed, the execution of the treaty would be simply impossible, if an executive warrant must be obtained from Washington before a seaman could be lawfully detained.
Considering the strong reasons, as well as the great preponderance of authority against the practice, -a preponderance which I find in the treaty itself, in the statute, and in the opinions of the greater number of the judges who have considered the question, — and further that the reasons in its favor have lost their force in the present state of practice in the state department, I feel constrained to refuse to establish it in this district.
I am credibly informed that in Robbins's Case, which lately occurred before Judge Shepley, in the District of Maine, the warrant was issued without a previous exequatur from the executive department, the case was heard before a commission specially appointed for the purpose, and was duly certified to the Secretary of State, who decided, upon the merits, that as the death of the wounded man occurred in Maine, and he could, therefore, be tried in either country, he should be tried here. This was in accordance with the rule laid down by a majority of the justices of the Queen's Bench, in 5 Best & S. 645. But no objection was taken to the mode of proceeding.
I may add that this practice really reconciles the opinions of both the majority and the minority in 14 Howard, the former of whom insisted on the impropriety of the judges obtaining leave to try a case from the executive, and the latter the danger of such a case being considered one of purely judicial cognizance.
Coming now to the evidence, it is entirely clear that it makes out a case of manslaughter. This crime is not provided for by the treaty, which enumerates murder, assault with intent to commit murder, piracy, arson, robbery, and forgery. It was suggested that possibly the word “murder” might include manslaughter. But considering that both these words have the same meaning in England and America, and that all the words in the treaty are strictly descriptive of well-known crimes whose defi. nition is not at all doubtful, this construction cannot be admitted. As well might we infer that robbery included theft, or piracy mutiny. In all the discussions upon the subject it is assumed, though I am not sure whether there is any reported case that decides it, that murder is used in its legal sense. If all unjustifiable homicide had been intended, it would have been so expressed. Prisoner discharged.
The Right OF WOMEN TO HOLD OFFICE. - SUPREME JUDICIAL COURT. Lucia M. Peabody v. The School Committee of the City of Boston. - The well, meant efforts of those who are anxious to have the Supreme Court of Massachusetts decide whether women are eligible to office in that commonwealth, and, if not, why not, have thus far not been crowned with success. The good people of Boston having elected two ladies to serve on the school committee, that body, perhaps fancying that it already contained too much of the anile element, declined to admit them, whereupon they applied to the Supreme Court for a mandamus to compel their reception by the committee. The question of their eligibility was elaborately argued, but the court has declined to pass upon it, and has dismissed the petition for lack of jurisdiction, holding that the charter of the city vests in the school committee the final authority to decide upon the qualification of its members, and that no question of law or fact involved in that decision is open for revision by judicial proceed