People v. Markham.

ing a witness was not authorized by the wording of the statute. In Newell v. Commonwealth, decided in 1795, it was said that a common-law information which attempted to allege that defendant, a justice of the peace, corruptly received a bribe to vote for a certain person as clerk of the peace, and that he did vote for such person, was too uncertain in not averring that an election for clerk of the peace was in fact held. In Old v. Commonwealth the only question considered was whether the evidence justified the verdict of guilty. It was that a new trial was properly denied. In Collins v. State, 25 Tex. Supplement, 202, the indictment, founded upon a statute, omitted to state that the matter, to influence his action upon which it was alleged money was offered to the districtattorney, was a matter of such nature as ever could come before him for official action.

None of the cases cited, when analyzed, would require a construction such as is claimed by appellant to be the correct construction of the section of our Code. The nearest case is Barefield v. State, and of that case we remark that the reasoning of the dissenting judge is to us more satisfactory than that of the prevailing opinion.

Here the duty of the defendant was to arrest those violating a certain law, and the duty was one which he might at any time be required to discharge. The matter might be presented to him for official action. The 67th section of the Penal Code provides that any person who gives or offers a bribe to any executive officer, with intent to influence him in respect to any act, etc., as such officer is punishable. By the 67th section the offense defined is that of one who offers; by the 68th, that of one who receives a bribe. If the witness who testified he paid money to the present defendant was informed against, would it not be enough to allege in the information that he paid the money in consideration of a promise that the officer would not arrest any person for a violation of section 330 of the Penal Code? His offense was complete. In the language of Mr. Justice CHILTON, "the legislature did not intend that the prosecution should depend upon the fact whether the officer actually had it in his power to carry out the corrupt agreement before the indictment was exhibited." See also People v. Ah Fook, 64 Cal. 380; People v. Kalloch, 60 id. 113, in no degree conflicts with the views above expressed.

[Minor matters omitted.]

Barstow v. Savage Mining Company.

The order denying defendant's motion in arrest of judgment is not appealable.

Judgment and order denying new trial affirmed. Ross, MYRICK, SHARPSTEIN, MCKEE and THORNTON, JJ., concurred.

A bona fide purchaser of certificates of stock standing on the company's books in the name of the former owner, regularly indorsed by him, and stolen from the present owner without his fault, gets no title.

A

CTION for transfer of stock. The opinion states the case. The defendant had judgment below.

Columbus Bartlett and Claude L. Smith, for appellant.

George W. Gordon, for Savage Mining Company, respondent.

James A. Waymire, for respondent Rogers.

MYRICK, J. The facts of this case, as presented in the findings, are substantially as follows:

Prior to February 5, 1879, the defendant, the Savage Mining Company, duly issued its three certificates of stock, No. 24843, certifying that C. A. Schmitt, trustee, is entitled to thirty shares of the capital stock of the said company, transferable on the books of the company by indorsement on and surrender of the certificate; No. 25537 in the name of Randolph, Mackintosh & Company, trustees for ten shares, and No. 25704 in the name of Greenbaum, Helbing & Company, trustees, for ten shares, in like tenor as the

On the 5th of February, 1879, the plaintiff purchased from the owners thereof, for value paid, the said fifty shares, and received the said certificates properly indorsed. Thereafter on or about May 1, 1879, the said certificates were, without any fault or negligence of the plaintiff, stolen from him, and were on the 6th of May, 1879, sold and delivered by the thief to the defendant Rogers, he, Rogers, purchasing the same in the usual course of VOL. XLIX-89

Barstow v. Savage Mining Company.

business, for value, without notice of any defect in his vendor's title. The plaintiff never sold the certificates or the stock which they represent or authorized or acquiesced in, or ratified such sale. On the 30th of May, 1879, plaintiff demanded of the defendant Rogers the return of the certificates, and Rogers refused to deliver them. The intervenor, Kutz, purchased the certificate for thirty shares (subsequently to the theft) in the ordinary course of business, for value, without notice of any defect in his vendor's title, and whatever title he (Kutz) has, he derived from Rogers. None of said fifty shares have been transferred on the books of the company from the names of the parties set forth in said certificates, except the ten shares represented by certificate No. 25537, which have been sold for assessment. After the theft the plaintiff duly demanded of the company a transfer of said fifty shares from the names in which they stand as aforesaid to his own name, and the issuance to him of a certificate therefor, and such transfer and issuance were refused. On the 11th of August, 1879, the intervenor presented certificate No. 24843 to the company, offered to pay any assessment levied on the stock represented thereby, and demanded a transfer to himself of the thirty shares and the issuance to him of a new certificate, which transfer and issuance were refused on the ground that the company had already been notified by plaintiff of his ownership of the stock and of the theft, and been directed to stop transfer thereof, and had been, in connection with Rogers, sued by plaintiff concerning the ownership of the stock. The court then found as to the value of the stock at the different times involved in the transactions. From these facts the court below concluded as law that the intervenor, Kutz, was entitled to judgment against the plaintiff and the company for his costs, and against the company for $460 damages, and that the defendant Rogers was entitled to judgment against the plaintiff for his costs, and rendered judgment accordingly. From this judgment the plaintiff appealed.

It will be seen from the foregoing that the question for consideration is, if shares of stock of a corporation, standing in the name of A. on the books of the corporation, be owned by B., the certificate being properly indorsed, and if the certificate be stolen without the fault or negligence of B., does the purchaser from the thief take title so as to prevent B. from claiming the property?

1. It is well known to be the general rule that a thief acquires no title to the stolen property, and that he can pass none. "The

Barstow v. Savage Mining Company.

mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title." Covill v. Hill, 4 Denio, 323. To the general rule above stated there are exceptions as to money and negotiable securities.

2. A negotiable instrument is defined to be "a written promise or request for the payment of a certain sum of money to order or bearer." § 3087, Civil Code. There are six classes of negotiable instruments, namely, (1) bills of exchange; (2) promissory notes; (3) bank notes; (4) checks; (5) bonds; (6) certificates of deposit. § 3095, Civil Code.

A certificate of stock, namely, that A. is the owner of shares of stock in an incorporated company, is not a promise or request for the payment of money, nor does it contain any of the elements of such promise or request. "A negotiable instrument must not contain any other contract than such as is specified in this article. 3093, Civil Code.

"The distinction between all these (notes, bills, corporation bonds) and corporate stocks is marked and striking. Certificates of stock are not securities for money in any sense, much less are they negotiable securities. They are simply the muniments and evidence of the holder's title to a given share in the property and franchises of the corporation." Mechanics' Bank v. N. Y. and N. H. R. Co., 13 N. Y. 627; Sherwood v. Meadow Valley Mining Company, 50 Cal. 412.

The case last above cited, Sherwood v. Meadow Valley Mining Company, was an action based on the following facts: One Schmeidell was the owner of twenty shares of the stock of the defendant and held a certificate therefor issued to himself, as trustee, and he sold the shares and delivered the certificate, properly indorsed, to Levy, who lost the same, not having had the stock transferred on the books of the corporation. The plaintiff purchased (as he supposed) the stock, and received delivery of the certificate, for value, in the usual course of business as a stock broker. It was held that the plaintiff acquired no right to the stock.

In the subsequent case of Winter v. Belmont Mining Company, 53 Cal. 428, the facts were that Winter was the owner of certain shares of stock, and had them transferred on the books of the company to the name of "M., trustee," who indorsed the certificates in blank, and delivered them to Winter. Subsequently M.

Barstow v. Savage Mining Company.

stole the certificates from Winter and sold them in the market in the ordinary course of business. The court in commenting on the statute providing that shares of stock may be transferred by indorsement and delivery of the certificate, but that the transfer is not valid except as between the parties, until entered on the books of the corporation, and on certain prior cases holding that until such entry the stock may be sold on execution against the person in whose name the stock stood, applied that principle to the case before it of stolen certificates, and held that the purchaser from M., the thief, took a good title. We are not prepared to follow that case (Winter v. Belmont Mining Company), in what is said in the opinion regarding the negotiability of certificates of stock; but on the contrary are of opinion that the principle that the thief of the stolen property (it not being money or negotiable securities), can pass no title, should be maintained, unless the facts presented by a case should bring it within the law as stated in McNeil v. Tenth National Bank, 46 N. Y. 325; s. c., 7 Am. Rep. 341: "When the owner of property confers upon another an apparent title to or power of disposition over it, he is estopped from asserting his title as against an innocent third party who has dealt with the apparent owner in reference thereto, without knowledge of the claims of the true owner." Upon referring to the transcript in Winter v. Belmont Mining Company, we observe the findings of the court state that Winter delivered his certificates to M. with permission that the latter have the shares of stock transferred on the books and certificates issued to him (M.) for the purpose of enabling the said M. to vote at the then coming election as the owner of said stock." Here was an element upon which perhaps it might properly be held that Winter was estopped from saying, as to an innocent purchaser, the title did not pass; because for one purpose at least, viz., to vote, he had authorized M. to appear to be and act as the owner.

But if the purchaser from one who has not the title, and has no authority so sell, relies for his protection on the negligence of the true owner, he must show that such negligence was the proximate cause of the deceit.

In the case at bar, the owner Barstow did not clothe the thief with any apparent power to pass title. The certificates (though properly indorsed), remained in the names of the former owners, and when Rogers purchased he was not dealing with any one who