Upton, Assignee, etc., vs. Burnham. The insurance company became insolvent at the time of the fire of October 9th, 1871, but afterwards advertised that it would resume business, and the defendant, soon afterwards, going to the office of the company to inquire about its condition, was asked by one of the officers if he did not own some stock, to which he replied that he had taken some in a trade, but it had never been transferred to him; and on the request of the officer he showed him the certificate, from which a clerk in the office took a memorandum and entered defendant's name as a stockholder on the stock register, which they were then making up, all the books and papers of the company having been destroyed. The company afterwards was adjudicated a bankrupt on creditors' petition, and Clark W. Upton appointed assignee by the court, and an assessment was made upon the stockholders for the unpaid balances on their respective stock. Boutell & Waterman, for assignee. Hitchcock, Dupee & Evarts, for defendant. HOPKINS, J.: Adhering to the views I expressed upon the trial, that the mere assignment of the certificate did not of itself constitute the assignee a stockholder, or create a liability upon the part of such transferee to pay the company the assessment in controversy, in support of which see Humble rs. Langston, 7 Meeson & Welsby, 517; Helm vs. Swiggett, 12 Indiana, 194; Mann vs. Currie, 2 Barbour, 294; Worrall vs. Judson, 5 do., 210; Adderly vs. Storm, 6 Hill, 624; The Marlborough Manufacturiny Company vs. Smith, 2 Connecticut, 579; and also that an equitable holder of stock is not. liable to the corporation for stock assessments, Newry Railway Company vs. Moss, 14 Beavan, 64, still, I think I erred in directing a verdict for the defendant instead of submitting to the jury the question as to whether the conduct of the defendant was not equivalent to a request or assent on his part to the entry of his name upon the stock book as a stockholder, and Upton, Assignee, etc., vs. Burnham. also whether the company had not, by entering his name as a stockholder in the stock register, given him the position of a legal member, and recognized the transfer to him as sufficient, notwithstanding its want of conformity to the formal transfer contemplated by its by-laws. There was some testimony given tending to show such facts which, I think, should have been left to the jury. The provision requiring the transfers to be upon the books was for the benefit of the company, and the company could waive it, and if waived at defendant's request or with his consent, express or implied, he would be liable directly to the company for future assessments. The registry of his name upon the books as a stockholder gave him all the rights of a stockholder, the right to vote and participate in dividends, and converted that which was before an equitable into a legal relation, upon which his liability for assessments would attach. A new certificate was not necessary to constitute him a stockholder. At the time of the assessment he was a registered stockholder, and as that gave him certain rights and benefits in the company, the law presumes that the registry was at his request.3 The assignment of the certificate with notice to the company conferred protection as against creditors of the assignee, and restrained the company from transferring or consenting to the transfer to any other party without incurring liability to him.4 It was the duty of the defendant, as between him and the assignee, to pay all assessments after the transfer, although not registered. 1 New Albany Railroad Company vs. McCormick, 10 Indiana, 499. The Chester Glass Company vs. Dewey, 16 Massachusetts, 94; The Chou tean Spring Company vs. Harris, 20 Missouri, 382. * Brigham vs. Mead, 10 Allen, 245; Shaw vs. Rowley, 16 Meeson & Welsby, 809; Walker vs. Bartlett, 36 English Law and Equity, 368; Huddersfield Canal Company os. Buckley, 7 Term, 36. Upton, Assignee, etc., vs. Burnham. The cases hold that upon an assignment good as between the parties, this duty attaches. In Hall vs. The United States Insurance Company, 5 Gill, 484, it is held that when a purchaser of a stock certificate paid an assessment, without being registered as required by the charter, he was estopped from setting up such want of registry in an action afterwards brought to collect another assessment; that in paying he had acknowledged his obligation, and was liable to the company as a stockholder without being registered. In Chittenham and Great Western Railway Company vs. Daniels, 7 English Railway Cases, 728, it is also held that a purchaser may be estopped by his representations and made liable for calls before his name is actually substituted upon the registry. See also pages 735 and 87C for other cases to same effect, and Eames vs. Wheeler, 19 Pickering, 442. The doctrine seems to be well settled that a certificate to a party, or registry of his name upon the stock register, is not absolutely necessary to constitute the legal relation or privity. The purchaser may waive it and be held liable without either a certificate or registry of his name. The corporation may waive the formal transfer and register the purchaser's name without any other transfer than the assignment in blank of the certificate. In view of these principles and the equitable obligations of the purchaser to pay subsequent assessments, slight evidence of mutual recognition by the corporation and purchaser of the relation of stockholder might be sufficient to change the equitable relation into a legal one, so as to make the purchaser liable directly to the company, and I am not prepared to say that the jury in this case might not have been warranted, upon the facts shown, in finding the defendant a stockholder, notwithstanding that a certificate of stock had never been issued to him. The company after registering his name, as such, would be estopped from setting up that the formal transfer was not inade, and after having registered his name it is very question Upton, Assignee, etc., vs. Burnham. able whether it could collect of the original holder future assessments, or be allowed to question the sufficiency of the assignment. The company having accepted and substituted another party as stockholder, the liability of the original subscriber ought to terminate with his rights as stockholder.1 In this case the provision in regard to the mode of transfer is in the by-laws and not in the charter, and it may be that its observance is not as indispensable to vest the title in the assignee as it would be if it were in the charter. Certain principal facts were proven, not admitting of doubt or controversy, while certain others were proven, not of themselves decisive, but as forming the foundation of inferences or conclusions, which inferences or conclusions were for the jury to find. I take it, if the jury should find that both parties waived a formal transfer, they would be bound by such waiver. In view of these considerations I think a new trial should be granted. At the next trial of this case, at the May Term, 1873, before BLODGETT, J., and a jury, post, 520, a verdict was rendered against the defendant for the unpaid balance on his stock, $12,000 and interest. The case is now pending in the Supreme Court. See also The British and American Telegraph Company vs. Colson, 6 Law Reports, Exchequer Cases, 108, and Hebbs' Case, 4 Law Reports, Equity Cases, 9, and cases there cited, where the defendants were held not stockholders, as having never duly accepted the allotment of shares. [Reporter. 'Shortridge vs. Bosanguet, 17 English Law and Equity, 331; Ex parte Bagge, 4 English Law and Equity, 72; 1 Redfield on Railways, 41, and note. 2 Chambersburg Insurance Company vs. Smith, 11 Pennsylvania State, 120; 1 Redfield on Railways, § 42. In re Hoyt. In re HOYT. DISTRICT COURT-WESTERN DISTRICT OF WISCONSIN-JANUARY, 1873. IN BANKRUPTCY. 1. LIEN OF MECHANIC RELATES BACK.-Under the Mechanics' Lien Law of Wisconsin, the liens relate back to the commencement of the building, without reference to the time when the work was actually done or materials furnished. 2. PRIORITY.-Such liens take precedence of a mortgage given after the commencement of the work. 3. But as between mechanics there can be no priority. This was a petition filed by mechanics to obtain priority of payment out of the funds in court as against the mortgagee of the same premises. About the middle of April, 1871, the bankrupts commenced the building of a hotel at Chippewa Falls, and on the 10th day of July, 1871, they gave a mortgage to Romeo H. Hoyt for $15,000, upon the premises covered by the hotel building then in process of erection, which mortgage was recorded on the day following. Work was continued on the building after the giving and recording of the mortgage, and new contracts were thereafter made for work and materials therefor. The bankrupts not paying such debts either for materials or work done before or after the mortgage, the parties filed liens upon the building in pursuance of the provisions of the statute of the state. Subsequent to the completion of the building, the proprietors were proceeded against in bankruptcy and adjudged bankrupts, and the property, by this court, ordered to be sold free and clear of all liens. The Wisconsin mechanics' lien law will be found in In re Cook and Gleason, ante, 116. |