Adams v. Adams.

upon the supposition that the husband and wife are to cohabit, as will appear from the language and object of the writ itself; and he asks: "How can a court award a separate maintenance to a wife upon a proceeding which she has recourse to upon the idea that she is to live with her husband?" In Codd v. Codd, 2 Johns. Ch. 141, Chancellor KENT doubted his power to grant the writ, even in a proper case, and asked why the party should not apply to a justice. of the peace to bind the other to his good behavior. The only cases cited in which it appears to have been granted in this country is Prather v. Prather, 4 Dessaus. 33.

In 2 Story's Eq. (8th ed.) § 1423, it is said that there is no modern instance of a decree of separate maintenance on supplicavit. No such instance is referred to in the argument in this case, nor have we been able to find one.

In Clavering's Case, 2 P. W. 202, a motion for supplicavit was refused, and it is remarked that the master of the rolls generally refuses to grant this writ, directing the party to apply elsewhere, namely, to the justices of the peace.

In its nature, it is a criminal proceeding; and this is a good reason why it should have gone into disuse, for it does not seem to be desirable that courts of chancery should retain this small modieam of criminal jurisdiction. The provisions of the General Statutes, chapter 113, which prescribe chancery jurisdiction and regulate chancery practice in this commonwealth, render it clear that the legislature did not intend to include criminal cases. And chapter 169, which regulates the process by which parties may be required to give sureties to keep the peace, limits the term of the recognizance to six months. This limitation would substantially destroy the value of a writ of supplicavit; and though the statute authorizes this court, as well as the inferior courts, to take such recognizances, yet it is to be so interpreted as to be consistent with the system of leaving all criminal matters, except capital cases, to be tried in the lower courts.

But it never was as a direct object of the writ of supplicavit to give alimony. Its purpose was to protect the complaining party from personal violence and abuse. Sometimes it was thought necessary to make a temporary provision for a wife who had left her husband, because it was not safe to live with him until he would receive her back. An attempt to use the process for the direct purpose of obtaining alimony to enable her to have a permanent separate maintenance would have been regarded as an abuse.

VOL. I.-15

Adams v. Adams.

Yet, the obvious purpose of the complaint in this case, is, to make this court an instrument by which a woman, who has ground for a divorce a mensa because of ill-treatment, may obtain a permanent separate maintenance, and still preserve the marriage relation. The petition enumerates the acts of abuse, avers that the petitioner has asked her husband for money and maintenance for herself and child, which he refuses to furnish, and avers that it is dangerous to her life to live with him. It alleges that he is concealing and wasting his property, and that she and her child are in danger of being left without support. It prays that he may be required to find sureties of the peace, and that, as incident thereto, there shall be granted to her, from his property or earnings, a suitable maintenance for herself and child, and that a writ of injunction may be granted, restraining him from conveying or concealing his property.

It alleges that she has left him, but does not intimate a willingness or desire to return. Of course the only use of a recognizance to keep the peace would be to prevent him from molesting her while living separately. The form of the ancient writ for which she asks would hardly be approved of by her or by the court.

But she puts her case upon the ground that she has conscientioue scruples against the remedy which is provided by law for married women who desire to be permanently separated from their husbands, namely, an application for a divorce. Such scruples may always justify a party in declining to avail herself of any legal remedy which the law has provided; or in applying to the legislature to establish a new remedy by statute. But the judicial department of the government has not power to make law; it can only declare what the law is, in application to cases as they are properly brought before it. We could not, for example, give to a party a remedy in equity on the ground that he had conscientious scruples against bringing an action of tort. For this reason, we cannot take notice of the conscientious scruples of the petitioner in respect to any remedy which the legislature has provided for her.

Petition dismissed.

Shaw v. Spencer.

SHAW V. SPENCER et al.

(100 Mass. 382.)

Transfer of stock certificates. Pledge of trust property.

A certificate of stock transferred in blank is not a negotiable instrument. Where one known to be a trustee, pledges that which is known to be trust property, to secure his own debt, the act is prima facie unauthorized, and it is the duty of him who takes such security to ascertain whether the trustee has a right to give it.

Where one holding certificates of stock in his name as "trustee," pledges the same as security for his own debt, the term "trustee" is a sufficient notice of a trust, and the pledgee who takes the certificates without inquiry, does so at his peril.

Evidence that stock certificates, issued in the name of one as trustee, and by him transferred in blank, are constantly bought and sold in the market without inquiry, is inadmissible, as varying an established rule of law. The owner of stock certificates, fraudulently pledged by one holding them as trustee, is not estopped from claiming them of the pledgee by standing by, after having notified the pledgee of his claim and demanding the stock, and without protest, witnessing the pledgee pay an assessment theretofore made on the stock.

Bill for an injunction to restrain Spencer, Vila & Co., a firm of brokers, from making any sale or transfer of two thousand shares of the stock of the Calumet Mining Company, or of the certificates thereof, and also the said company from recognizing the validity of any such sale or transfer otherwise than to the plaintiff.

The following were the facts: Charles Mellen, a member of the firm of Mellen, Ward & Co., as collateral security for an antecedent debt due from that firm to Spencer, Vila & Co., had delivered to them two certificates of stock in the Calumet Mining Company for one thousand shares each, standing in the name of another member of the firm of Mellen, Ward & Co., namely, "E. Carter, trustee," and by him transferred in blank. These certificates contained the following provision: "Transferable only on the books of the company by the holders thereof in person, or by a conveyance in writing recorded in said books, and surrender of this certificate."

The shares represented by these certificates were originally owned by Q. A. Shaw, had been transferred by him to the plaintiff, S. P. Shaw, and by him transferred into the name of "E. Carter, trustee," as collateral security for acceptance of Q. A. Shaw, on drafts of the

Shaw v. Spencer.

Huron Mining Company, which had been taken by Carter's firm, Mellen, Ward & Co., for negotiation. The receipt given by Mellen, Ward & Co. for these certificates acknowledged them as collateral security, and promised to return them to S. P. Shaw, the plaintiff, whenever said acceptances were paid. The books of the company did not show the arrangment with Carter, nor the nature or extent of the trust. At the time of the delivery of the certificates to the defendants, Spencer, Vila & Co., nothing was due Mellen, Ward & Co. on the Shaw acceptances.

The firm of Mellen, Ward & Co. having failed, without paying their debt to Spencer, Vila & Co., the latter firm filled the blanks in the transfer of the certificate with their own name, and presented them to Q. A. Shaw, the transfer agent of the mining company, and requested that the transfer be made and a new certificate issued in the name of the firm. Mr. Q. A. Shaw declined to make the transfer on the ground that an assessment of five dollars per share, which had been made on the capital stock, remained unpaid on the shares in question. The next day, having learned of the manner in which Spencer, Vila & Co. had become possessed of the certificates, Mr. Q. A. Shaw served a notice on that firm that the said certificates were his property, and requested them to hold the same subject to his orders. This notice was signed by him "for self and other trustees." Afterward, Spencer, Vila & Co. paid at the office of the company, to Mr. Q. A. Shaw, who had become treasurer, and in the presence of the plaintiff, who was then president, the assessment due on the shares, which was received, and no demand made for the stock. On the next day the treasurer returned the amount paid on the assessment, with a notice signed as before, that the payment was made and received by mistake, and that the stock was owned by himself. The defendants refused to receive the amount so returned. The plaintiff then served notice on the defendants that the stock belonged to him, and requested them to deliver the certificates to him, with such indorsements as would enable him to obtain it, and the request being denied, filed this bill.

The defendants offered testimony to show: "1. That it is usual with dealers in the stock market to deliver, by way of sales or pledge, certificates of stock, with a blank transfer upon the back. 2. That it is usual for holders of certificates of stocks, transferred in blank, to fill them up by inserting the name of some person as transferee or purchaser. 3. That it is a matter of common occurrence for cer

Shaw v. Spencer.

tificates of stock to be issued in the name of some other person as trustee, when, in fact, there is not any trust. 4. Whether certificates of stock, issued to a designated person as trustee, are constantly bought and sold in the stock market by a simple indorsement of the certificate by the person named as the holder, without inquiring as to the authority by which, or to the use or purpose for which, the transfer was made." But the judge ruled that, "as to the first two propositions, the facts proposed to be shown were immaterial; and, as to the last two, by the rules of law they were inadmissible."

The defendants excepted, and the judge reported the case for decis ion thereon.

S. Bartlett and F. Bartlett, for plaintiff.

B. R. Curtis, C. B. Goodrich and J. M. Keith, for defendants.

We give only a brief outline of the argument.

1. The doctrine of constructive notice should be applied with caution; per Lord COTTENHAM, in Jones v. Smith, 1 Phil. Ch. 253; Lord CRANWORTH, in Ware v. Egmont, 4 De. G., McN. & Gord. 460; McMechan v. Griffing, 3 Pick. 149; Buttrick v. Holden, 13 Met. 355; Ashton v. Atlantic Bank, 3 Allen, 219.

2. Whether the doctrine of constructive notice will be applied depends on the peculiar facts of each case. 2 Sugden on Vendors (7th Am. ed.), 1041; Dewey, J., 3 Allen, 222.

3. When it depends on extrinsic facts whether the fact of which a party has notice does or does not affect the validity of the proposed title, and the party purchases without gross negligence, he is in the sense of the equity law a bona fide purchaser without notice. 2 Sugden on Vend. (7th Am. ed.) 1059 and cases cited; Lord ELDON, in Attorney General v. Backhouse, 17 Ves. 293; Boyce's Ex'rs v. Grundy, 3 Pet. 210; Buttrick v. Holden, 13 Met. 355; Calais Steamboat Co., v. Van Pelt, 2 Black. 377; Frazer v. Western, 1 Barb. Ch. 220.

4. The defendants purchased without gross negligence.

5. The plaintiffs had put it in the power of Carter to deceive the defendants.

6. The plaintiff having stood by while the defendants paid the assessment on the stock, without claiming the stock or denying the defendants title, is estopped.