no such precaution, as the law stands, can be taken, and these resolutions are designed to furnish guards against theft and other crimes, equivalent, though not similar, to that furnished by the peace warrant against assault and battery. We can perceive no reasonable objection to this line of legislation. Burglary, shop-lifting, pocket-picking forgery, counterfeiting, are, especially in our large cities, as distinctly professions as law, medicine, or divinity, and their practice being pernicious to the public welfare, it is not unreasonable that they should be subjected to judicious regulation. It is true that the felon's feelings might be hurt by the extra publicity given under laws of this character, to his exploits, and his "mug," but then he should be patriotic enough to suppress his chagrin in view of the public good. If his reformation is retarded by periodical or occasional contact or association with the minions of the law, it is greatly to be deplored, but then in nearly every case, reformation is a thing to be hoped for, rather than expected, and we cannot think that public security should be jeopardized for the sake of so problematic a benefit as the reformation of a thief or a burglar. Felons like other wild beasts cannot be tamed unless they are caught young, and these resolutions do not contemplate the application of the proposed statutes to cases of juvenile offenders, or to others who are not confirmed or professional criminals.

It is true that police surveillance implies a certain stigma, as well as a want of confidence in the probity of the party watched. In this point of view it is certainly objectionable-to him. We cannot see why it is so to any one else. The stigma is a continuing condition of the felon's case, it attaches upon his conviction and usually outlasts, by years, his term of penal servitude, and this, with, or without subsequent police surveillance.

The objections to this line of legislation seem to us destitute of any foundation in reason, humanity or public policy. It is the duty of the State to protect the lives and property of its citizens against crime by all expedient and practicable means, and if those means are in any respect inconvenient to the criminals, either before or during, or after the commission of the crime, so much the better for the people, and so much the worse for the criminals.

NOTES OF RECENT DECISIONS.

DEDICATION TO PUBLIC USES-AT COMMON LAW AND BY STATUTE-ACceptance of DediCATION EFFECT OF SUBSEQUENTLY CREATED MUNICIPALITY.-In a recent case1 in the Supreme Court of Illinois, the question was presented, what constitutes a dedication to public uses, and also several collateral questions relating to that subject. It appears that the Maywood Company, a private corporation, purchased a tract of over five hundred acres of land in the vicinity of Chicago, laid it out in lots, and proceeded to advertise it very vehemently as a suburban village in the highest degree desirable as residence property, and, indeed, for almost any other use. In its numerous and repeated publications, in pamphlet form and otherwise, the company assured the public that block No. 58, containing sixteen acres in the plan of the village, was devoted to public uses as a park, and by description and pictures gave a most flattering account of its present, and presumably prospective, attractions as a pleasure ground, enumerating and displaying lakes, bridges, grottoes, well-house, observatory, music stand, and other like attractions. The purchase of the company was made in 1869, and from that time to 1881 residents had used the park for public purposes. In October, 1881, the village was incorporated under the general incorporation law, and a month earlier the Maywood Company had made a trust deed to Botsford to secure certain bonds. This suit was brought in consequence of the refusal of the Maywood Company to transfer to the municipal authorities of the village of Maywood the control of the park, and to convey the title to it.

The court says: "The facts above recited indicate an intention, on the part of the Maywood Company, to dedicate block 58 (with the exception of the hotel and hotel grounds, covering the north 168 feet of the west 287.55 feet of said block) to the public for the purposes of a park. A dedication may be made by grant or other written instrument, or it may be evidenced by acts and declarations without writing. No particular form is requisite to the validity of a dedication. It is

1 Maywood Company v. Village of Maywood, N. E. Repr., Vol. 6, 886.

A dedica

merely a question of intention. tion may be made by a survey and plat alone, without any declaration, either oral or on the plat, when it is evident from the face of the plat that it was the intention of the proprietor to set apart certain grounds for the use of the public. The difference between a statutory and common-law dedication is that one vests the legal title to the ground set apart for public purposes in-the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public which it would have if the fee was in the corporation.'

Although during all the years that elapsed between the first announcement of the dedication to public uses, of the block (58), the legal title continued in the Maywood Company, it was from that time charged with a trust in favor of the public, for the use of the block as a public park. And during all that time the acceptance of the dedication by the public was indicated, as far as it could be, by the actual use of the park as a pleasure ground, and all those purposes of recreation for which public parks are laid out.4

The law in such a case as that under consideration, is, that when one sells lots with avowed reference to such an easement, privilege, or advantage, as the use of streets, public grounds, or other like inducements to a purchase, the easements, etc., so avowed, are, if within the control of the vendor, guaranteed by him, and are, in fact, appurtenant to the property conveyed to the vendee." And in such a case the vendor is estopped from revoking the dedication of such easements to public uses, and so are all persons claiming under him, who are affected by notice, actual or constructive, of the trust. And if there has been any such disavowal by the vendor of the trust in the easements to the benefit of which the vendee is entitled, equity will interpose. It is the province of

equity to prevent the perversion of trusts.6 For the rest, the essential part of a dedication of lands to public uses is the intention of the party to make the dedication; this may be evidenced by the most solemn legal instruments, or by the most ordinary of acts in pais. The intention, however, must be manifested in such a manner that there can be no controversy about it.

In Illinois there is a mode of dedication to public uses prescribed by statute. That mode was not pursued in the case under consideration, but the court held that the validity of the dedication was not impaired by that circumstance, that when there is a statutory dedication prior to the creation of a municipal body empowered to receive it, the fee remains in abeyance until such a corporation is formed, and then vests in the corporation as soon as it is created. If the dedication is a common law dedication, under such circumstances, the fee remains in the dedicators, subject to the uses for which it was dedicated, and upon the formation of a municipality, the uses of the public, vest in that municipality. And in an action to enforce such a trust, the individual beneficiaries of the trust have such an interest in it that they may be joined with the municipality.

6 City of Jacksonville v. Jacksonville, etc, Co. 67 Ill. 540. 7 Canal Trustees v. Haven, 11 Ill. 554.

SHARES OF STOCK

CREDITORS AND ASSIGNEES OF CERTIFICATES.

Considering the magnitude of the interests involved, no questions of greater importance can arise than those which affect the sale and transfer of shares of stock in incorporated companies. It is absolutely necessary for the security of such investments, that some certain and unvarying mode of transferring title to them should be firmly established and strictly adhered to, yet no such mode, obligatory alike in all cases, has been established. The judges have not agreed, either as to general principles of law relating to the subject, or as to the weight to be given to the considerations peculiar to each case.

It is proposed to discuss one of the many phases of the controversy, and examine as

far as is practicable in a brief space, this question; when does an assignment of stock in a corporation become effectual as to the creditors?

1811. The first case upon the subject is, U. S. v. Vaughn,' which decides that the assignment of the certificate transfers the title to the stock. It proceeds upon the theory that a share of stock is in the nature of a chose in action, that after the assignment of a chose in action, it is not attachable as the property of the assignor, and that the authorized by-law of a corporation requiring transfers of stock to be registered on its books, is for the protection of the company, and not for the benefit of the creditors of its stockholders.

2

1840. It is followed in Commonwealth v. Watmough. In this case, counsel for the creditor urged that a sale of property unaccompanied by delivery, is void at common law, and that the proper mode of delivering shares of stock is to transfer them upon the books of the company, in conformity with its by-laws. The court overrule this suggestion on the ground, that as creditors have not access to the books of a corporation, such delivery would not avoid the fraud which it was the design of the common law to preclude.

1841. In Fiske v. Carr3 a different conclusion is reached, but it seems to be based upon a statute of Maine, expressly declaring that title to stock shall not pass unless the transfer be entered upon the books of the company.

creditors, who attach before the transfer of stock is recorded, where the charter of the company provides that shares should be transferable only on the books of the company, on a somewhat different basis. The learned judge, while admitting that at common law a share of stock may be assigned without a transfer on the books, holds that such a provision of the charter overrides the common law. He meets the suggestion that the provision is for the protection of the corporation only, as follows: "If we may judge of the intended operation of an act of legislation from the useful and beneficial purposes it may tend to promote, we should construe such a provision as having a much broader scope. As a great amount of property in Massachusetts is held in shares of corporations, it is important that title to them be easily and certainly ascertained, that the mode of alienating and acquiring it be fixed and known, and that it may at any time be made available by process of law for the payment of debts of the owner. In no other way can these objects be so well accomplished as by a transfer at the bank. The law might have provided that the bearer of the certificate should be the owner, so that it might pass from hand to hand by mere manual delivery; but this would have been attended with almost inextricable difficulties. The shares could never be attached, for the officer could have no means of obtaining possession of the certificate, yet without it, shares might pass to innocent purchasers without notice. It is of great importance that this large amount or property should be attachable and liable to execution. This has long been the policy of this State, and it is provided that the attachment may be levied by leaving a written notice at the office of the company. It is necessary to fix some act and some point of time at which property vests in the vendee, and it will tend to the se

curity of all parties to make this turning point consist in an act which, whilst it may be easily proved, does at the same time give notoriety to the transfer."

Vermont. In both of these cases, however, the charter provided only that shares might be transferred by writing, recorded by a clerk of the company in a book to be kept for that purpose.

1860. Two years later the Supreme Court of New Jersey, 10 made a ruling contrary to the Massachusetts decision, and held that even where the charter declares that shares shall be transferable only on the books of the company, the holder of a certificate has a better right than a creditor attaching before the assignment is entered upon the books. In their opinion the charter provision is intended for the protection of the corporation, and does not affect the law of sales. The Supreme Court of Connecticut decided in the same year that a sale of shares, which is not recorded according to the rules of the corporation, is fraudulent and void as to subsequent attaching creditors, and, in 1862, the Circuit Court of the United States 12 held that where the certificate recites that shares are transferable on the books of a company, title does not pass until the transfer is actually recorded, without regard to the provisions of the charter or by-laws, and the Supreme Court of Massachusetts rendered a decision affirming its earlier cases.13

1868. Finney's Appeal,14 a Pennsylvania case, follows Commonwealth v. Watmough, in deciding against the right of the attaching creditor where the certificate has been assigned prior to the attachment.

1871, In 1871 the Supreme Court of New Hampshire 15 held that even in the absence of any rule or regulation on the subject, a sale without entry on the books is void as to creditors under the general policy of law relating to fraudulent conveyances.

1873. In 1873 a New York court 16 held that a transfer of the certificate was sufficient delivery of the stock within the reason of said law, notwithstanding a provision of the charter of the company requiring transfers to be registered, and expressly declaring

91 Am. Railway Cases, 126, 1870.

10 Bank v. McElrath, 13 N. J. Eq. 26, 1860. 11 Shipman v. Aetna Ins. Co., 29 Conn. 253, 1860. 12 Williams v. Mechanic's Bank, 5 Blatch. 60, 1862. 13 Rock v. Nichols, 3 Allen, 342, 1862.

14 59 Pa. St. 398, 1868.

15 Scripture v. Scapstone Co., 50 N. H. 583, 1871. 16 Smith v. Am. Coal Co., 7 Lans. 317, 1873.

that no transfer should be valid until recorded.

1879. The last case was indorsed by the Supreme Court of Louisiana, six years later,17 but in the same year in which this opinion was delivered, the Supreme Court of Illinois rendered a directly contrary decision, resting upon the reasoning of the New England cases, and condemning the New York and New Jersey cases.18

1880. To add to the confusion, in 1880 the Massachusetts judges established what seems to be an exception to the rule laid down in Fisher v. Essex Bank.19 They decide that in the absence of an express provision of law invalidating unrecorded transfers, the holder of the certificate has a better right than the attaching creditor where the by-laws of the company require transfers to be registered, whereas Judge Shaw intimates that such a case might come within the rule announced by him.

1881. This last opinion is followed by a decision of Judge Lowell, criticising Fisher v. Essex Bank, and the Illinois cases, and going to an extreme length in favor of certificate holders. He affirms that certificates are quasi negotiable instruments, and that one who holds them is to be preferred not only to a creditor of the assignor, but to a subsequent assignee on the books of the company. He adopts the principles of law announced in U. S. v. Vaughn, as to the relative rights of assignees, of choses in action, and creditors of the assignor.20 In the same year the Supreme Court of Wisconsin made a decision

17 Griedlander v. Slaughter House Co., 31 La. An. 525; see also State v. N. O. & C. R. R., 30 La. An. 308, 1878.

18 People's Bank v. Gridley, 91 Ill. 457, affirmed 99 Ill. 360.

19 Cory v. Music Hall Ass., and Dickinson v. Cent. Nat. Bk., 129 Mass. 437, see also Sibtey v. Quincy Nat. Bank, 133 Mass. 515, 1882. Judge Shaw intimated that where the charter authorized a by-law on the subject, such a by-law might have the force of a charter provision, and none of the decisions following Judge Shaw base the conclusion on the peculiar provision of the charter in Fisher v. Essex Bank; see provisions of charters in cases cited under notes 7, 8, 9, 12, 15, 18. Moreover the cases against the right of the attaching creditor are not made to depend on the absence of any such provision, except the two, first cited in this note. Others disregard the most positive provisions of charters on the ground that they are intended for the protection of the corporation only, notes 10, 16, 17, 20.

20 Continental Bank v. Elliot Bank, 7 Fed. Rep. 500, 1883.

quite contrary to Judge Lowell's, both in reasoning and conclusion.21

1883. Finally, in 1883, the Circuit Court of the United States affirmed the opinion of Judge Lowell.22

Besides these cases, directly in point, many others are cited, which contain dicta on the subject. For example, an opinion of Judge Story23 is frequently referred to as establishing the principle, that charter provisions requiring transfers of stock to be registered, are for the benefit of the company only, yet in the case cited he expressly disclaims any opinion on this point, 24 and in a subsequent decision uses the following significant language: "No person, therefore, can transfer the legal title to any shares except by a transfer according to the rules of the bank, of which the purchaser is bound to take notice." 25 Judge Miller, of the U. S. Supreme Court, in a case where the rights of creditors were not involved,26 used very strong language as to the character and effect of certificates, which has often been cited to strengthen an opinion against creditors, but Mr. Justice Field, of the same court, in a later decision says: "Entry of the transfer on the books of the company is necessary to protect the seller against subsequent liability as a stockholder, and perhaps also, to protect the purchaser against the proceedings of the creditors of the seller."'27

Enough has been said to exhibit the hopeless confusion that has for a long time prevailed upon the subject. Melius est petere fontes quam sectari rivulos.

We believe that the question under consideration, in its ultimate analysis, must resolve itself into an inquiry whether or not the failure of the assignee of a certificate to register the transfer on the books of the company in

21 Application of Thos. Murphy, 51 Wis. 522, 1881. 22 Scott v. Pequonnock Bank, 15 Fed. Rep. 500, 1883. 28 U. S. v. Cutts, 1 Sumner, 138, 1832.

24 At page 150.

25 Union Bauk v. Laird, 2 Wheat. 390, 1817.

26 Bank v. Lanier, 11 Wall. 369, 1871.

27 Johnson v. Laflin, 103 U. S. 800, 1881, see also Merchant's Nat. Bank v. Richards, 6 Mo. App. 454, 1879, where both Corporation and purchaser at sale had notice of the certificate, and a presumption of fraud could not have arisen, 58 Cal. 600; 9 Mo. 154; 13 Mo. App. 199; 20 Mo. 385: 52 Mo. 379; 6 Cent. L. J. 124; 10 Ala. 82; 53 Ga. 532; 46 N. Y. 329; 11 S. C. 520; 39 Gratt. 502; 11 Wall. 69; 9 Pick. 202; 11 Wend. 627; 22 Wend. 352; 10 Ind. 502; 8 Pick. 90; 20 Wend. 91; 34 N. Y. 30: 6 Hill, 627.

conformity with its rules, is such evidence of fraud, actual or constructive, as will invalidate the sale.28

An unquestioned rule relating to the delivery of personal property has not yet been established. The obligation of a vendee to the creditors of the vendor depends upon the circumstances of each case. Mr. Bump, in his work on Fraudulent Conveyances says: "The history of the law respecting the rights of creditors, in relation to the property of debtors, sold, assigned, or mortgaged, but remaining in the possession or under the control of said debtors, presents a perpetual struggle between a general rule of policy on the one side, designed to cut off the possibility of fraudulent or collusive sales, and on the other side, the obvious hardship of numerous particular cases, where the innocent and even benevolent intention of parties was manifest and the presumption of fraud appeared oppressive."29 He declares that to the general presumption of fraud under such circumstances, twenty-four exceptions at least have been made.30 We are not prepared to canvass the cases upon this subject. It may safely be asserted, however, that a presumption of fraud arises wherever the consequences of neglect to take possession of property purchased, may be to injure third parties, and that this presumption becomes conclusive whenever such injury is the probable or inevitable consequence of such neglect. The rule is based upon well recognized principles of policy, and is designed to preclude the possibility of fraud. The kind of delivery required, manifestly depends upon the character of the property; but it must in all cases be such as will best observe the policy above declared. 31

28 Lowell on The Transfer of Stock, 103; Colt v Ives, 21 Conn. 29 Conn. 245; 10 Pick. 454; Weston v. Bear River Co., 6 Cal. 425; 35 Cal. 653. 29 Bump Fraud. Con., ch. 5.

30 Id. page 62 and note.

31 Lord Coke, Twyne's Case, 3 Coke, 80; Lord Bacon quoted, Dearle v. Hall, 3 Russ. 1; Lord Mansfield, Cadogan v. Kennett, Cowp. 432; Lord Harkwicke, Ry. all v. Rolle, 1 Atk. 165: Lord Eldon, Dearle v. Hall, and Loveridge v. Cooper, 3 Russ. 1 & 38; Buller J. Edwards v. Harben, 2 T. R. 587; Lord Lyndhurst Foster v. Cockerell, 9 Bling. N. R. 332; Pothier Contracis, Cush Ed. 201 C. 2, 20; Domat. P. P. I. b. 1 T. 2 § 1 Arts. 9, 11; Berj. on Sales § 675, n. d; Bump. Fraud Convs, 177; Hamilton v. Russell, 1 Cranch. 309; 32 P. F. S. 451; 9 Pick. 349, 4 Camp. 251; I Taunt. 458; 2 Camp. 243; 7 Taunt. 288; 17 Mass. 113; 2 C. P. L. R. 525.