[Foust v. Greene.] ates the bid to the discharge of the execution and satisfaction of the judgment, notwithstanding he may refuse to accept the property. Halcomb v. Loudemilk.-3 Jones Law, 491. We decide nothing as to effect of the statute of frauds; this question was not raised in the Circuit Court, and can not be raised the first time in this court. All we decide is, that on the agreed state of facts, if there be nothing else, the motion to enter satisfaction should have been granted. Reversed and remanded. Foust v. Greene. Certiorari to Justice's Judgment. 1. Statutory claim suit before justice of the peace; forfeiture of claimant's bond.-When a statutory claim is interposed to property on which an execution issued by a justice of the peace has been levied (Code, §§ 3365-68), the bond can not be returned forfeited, nor a statutory execution issued against the sureties, until there has been a trial of the statutory claim suit. APPEAL from the Circuit Court of Jefferson. Tried before the Hon. JAMES B. HEAD. The appellant in this case, George Foust, recovered a judgment in a justice's court, on the 4th March, 1886, against A. V. Fletcher and A. J. Fletcher, for $58; and an execution on this judgment was levied, December 5th, 1887, on 140 bushels of corn, which was claimed by D. W. Letson as his property. The execution was in the hands of one Crawford, a constable, and the levy was made by him; but the bond was taken by S. A. Truss, the sheriff of the county, and approved by him on the 10th December, 1887; and on the 28th December, 1888, a return of forfeiture was made on it by J. S. Smith, the succeeding sheriff, in these words: "The claimant having failed to produce the within property as herein provided, this bond is herewith returned forfeited." On the 31st December, 1888, the justice of the peace entered on his docket a judgment in these words: "Bond returned forfeited, by J. S. Smith, sheriff; judgment against D. W. Letson and Robert S. Greene, for $58; and he issued an execution against them on this judgment. Thereupon, said Letson and Greene filed their petition for a certiorari and supersedeas, addressed to the presiding judge of the circuit, and praying that the proceed [Foust v. Greene.] ings be removed into the Circuit Court, the judgment set aside, and the execution quashed. The petition alleged, "that no affidavit or bond, as required by law, was ever returned by said Crawford into the court which issued said execution against the Fletchers, and no issue was ever made up in that court, or in any other court, to try the right of property to said corn between said Foust and said Letson, nor was there ever any trial of the right of property; that on or about the 21st January, 1888, J. D. Strange, as attorney for said Letson, prayed and obtained a writ of certiorari, removing into the Circuit Court said cause wherein judgment was rendered in favor of Foust against Fletcher, and alleging that said Letson did not make affidavit and give bond to try the right of property in the justice's court; and on the hearing of this petition or matter in the Circuit Court, the same was dismissed, because said Letson, as claimant, had never made affidavit claiming said corn as his property, and therefore neither said justice nor said court had any jurisdiction of the matter, and a procedendo was awarded to the justice." The court overruled a demurrer to this petition, set aside the judgment, and quashed the execution as prayed; and this judgment is now assigned as error. JNO. W. CHAMBLEE, for appellant. WARD & JOHN, contra. STONE, C. J.-When a claim is interposed to property levied on under a justice's execution, the law prescribes certain steps to be taken, to inaugurate a claim suit, or trial of the right of property.-Code of 1886, §§ 3365-6. It is only after a trial is had, the property found subject, and, after that, an indorsement of "forfeited" entered on the claim bond by the officer making the levy, or by his successor, that execution can be issued against the claimant and his sureties.-Code, $$ 3367-8. In the present case, there has been no trial of the right of property, and, consequently, the point was never reached when the levying officer was authorized to return the bond forfeited. The Circuit Court did not err in quashing the execution, and setting aside the office judgment. Catching v. Bowden, 89 Ala. 604. Affirmed. VOL. XO [White v. Rankin & Co.] White v. Rankin & Co. 90 541 124 245 90 541 Statutory Claim Suit for Shares of Stock in Corporation. 137 631 1. Judicial notice of circuit clerks.-The court is bound to know judicially whether a person, whose name is signed to an execution as clerk, was in fact the clerk at that time; and may refuse to receive oral evidence to disprove the fact. 2. Transfer of stock on books of company; lien of execution as against unregistered claimant.-Under statutory provisions, shares of stock in a private corporation are made subject to levy and sale under execution or attachment, and transfers thereof, not duly registered on the books of the corporation, are declared void as against bona fide creditors and subsequent purchasers without notice (Code, 1876, §§ 2041–44; Code, 1886, §§ 1670–73); and these provisions embracing "all transfers, hypothecations, mortgages, or other liens," apply to the equity of a claimant for whose benefit stock has been subscribed by another person in his own name, and who has paid several installments, but has not obtained a certificate, and subordinate his rights to the lien of an execution creditor of the nominal shareholder, without notice. APPEAL from the Circuit Court of Colbert. This was a statutory trial of the right of property in and to ten shares of stock in the Sheffield & Tuscumbia Street Railway Company, between Rankin & Co., plaintiff's in execution against J. C. Boyleston, and Walter S. White as claimant. The transcript has not come to the hands of the reporter. The opinion states the material facts. KIRK & ALMON, for appellants. J. B. MOORE, contra. CLOPTON, J.—The court committed no error in refusing to receive oral evidence that McNab, who signed the execution, was not the clerk of the Circuit Court of Barbour county at the time it purports to have been issued. The clerk being a commissioned officer, the court was authorized and bound to take judicial knowledge that he was clerk, and also of his term of office, when it commenced, and when it expired.-Cary v. State, 76 Ala. 78; Bishop v. State, 30 Ala. 34. If the cognizance extends beyond actual knowledge, the judge may resort to any authoritative sources of information, and inform himself of the fact in any way he may deem best, in his discretion; [White v. Rankin & Co.] but he is not required to receive oral evidence to disprove a fact, the existence of which is judicially known to the court. Appellant interposed a claim to ten shares of the capital stock of the Sheffield & Tuscumbia Street Railway Company, which were levied on under execution issued on a judgment obtained by appellees against J. C. Boyleston. The evidence on the trial of the right of property shows, that the stock was subscribed for by Boyleston in his own name, and was so registered on the books of the corporation at the time of the levy of the execution, but that he subscribed for it by request of, and for the claimant. Only two calls or assessments on the stock were made; the first being paid by Boyleston, with the money which he owed White, and the other by White himself. The stock not having been fully paid up, no certificate of shares has been issued. The question is, whether, on these facts, the lien of the execution prevails over the equity of claimant, the plaintiff in execution having notice thereof. The levy having been made, and the claim interposed, before the Code of 1886 went into effect, the question must be determined by the statutory provisions as found in the Code of 1876. They are, however, substantially the same in both Codes. In the absence of the statute, shares in private corporations, being intangible, and regarded in the nature of choses in action, are not amenable to levy under execution. To remedy this defect in the law, a statute was enacted, declaring: "The shares or interest of any person in any incorporated company are personal property, and transferrable on the books of the company in such manner as is or may be prescribed by the charter, or articles of incorporation, or by-laws and regulations of the company; and such shares or interest may be levied on by attachment or execution, and sold as goods and chattels," The levy may be made with or without the officer having the possession of the certificate, or other evidence of the ownership of the stock or interest, by indorsement on the attachment or execution. Code, 1876, § 2041. The shares, not the certificates representing them, are made subject to levy. In regard to the registration of transfers of stock, section 2043 provides: "When, by the charter, articles of association, or by-laws and regulations of an incorporated company, the transfer of the stock is required to be made upon the book or books of such company, no transfer of stock shall be valid as against bona fide creditors, or subsequent purchasers, without notice, except from the time that such transfer shall have been registered upon the book or books of such company." It appears that a by-law of the corporation required the secretary to keep a book in which all stock certificates and transfers [White v. Rankin & Co.] shall be registered. In declaring a transfer inoperative against bona fide creditors without notice, except from the time it is registered as required, the statute gives such creditor, whose execution has been levied before that time, a lien superior to the claim or title of the transferrees.-Berney Nat. Bank v. De Bardeleben, 87 Ala. 577; Fisher v. Jones, 82 Ala. 117; Jones v. Latham, 70 Ala. 164. It is insisted that the statute was intended to protect creditors and purchasers against dormant transfers and conveyances by the holder of the stock, and has no application when the subscription was made for another by the debtor, though made and the stock registered in his own name. This insistence is rested on the theory that, as the statute makes no difference, as to amenability to levy and sale, between stock in an incorporated company and other personal property, placing both in this respect on the same footing, only the title or interest of the defendant in execution is subject to levy and sale, and where there has been no actual transfer, and the stock never belonged to the debtor, though standing in his name on the books of the company, the judgment-creditor acquires no lien, and a purchaser at the execution sale would obtain it subject to the outstanding equity. A construction which limits the provisions and requirements of the statute to actual transfers by the holder, and excepts from its effect and purpose protection to creditors against an undisclosed equity to a transfer, restricts its operation within too narrow limits, and defeats its policy in a great measure. The broad and comprehensive language of section 2044 makes apparent the intention to include all transfers and liens, legal or equitable. After requiring an incorporated company to make provision for the transfer of its stock on the books, the section provides: "And persons holding stock not so transferred or registered, or holding any stock under hypothecation, mortgage or other lien, must have the transfer, hypothecation, mortgage or other lien, made or registered on the books of the company; or, upon failing to do so within fifteen days, all such transfers, hypothecations, mortgages or other liens, shall be void as to bona fide creditors, or subsequent purchasers without notice,"-transfers and liens of every description, verbal or written, legal or equitable. The contention of claimant is based on a misconception of the nature and extent of a subscription for stock in private corporations. When accepted, it creates the status of shareholder, with all its resulting incidents, rights, and liabilities. The subscriber has, not merely the possession so far as such property is capable of possession, but also the apparent own |