Opinion of the Court, per ALLEN, J.

the 21st, which prohibits "judicial officers," except justices of the peace, from receiving to their own use any fees or perquisites of office. The term includes judges and justices of all courts and all persons exercising judicial powers in virtue of their office. The same section, however, where it imposes other restrictions, limits it to certain judges and justices particularly specified, and while a "judge of the Court of Appeals" is prohibited from acting as referee, a commissioner of appeals is not named.

It is not enough that a commissioner of appeals exercises the same functions as a judge of the Court of Appeals, to the extent of the jurisdiction conferred; he is not an incumbent of the office created by the Constitution under that name.

The inference is that the framers of the Constitution have used the same title to designate the same officer in every part of the instrument.

Courts might conjecture that the same policy which prohibited a judge in a city court in Brooklyn or Buffalo, from acting as referee or counsel, would extend the prohibition to the county judge of Kings, Erie or Albany, and other judicial officers, but it would not be allowable to extend it by implication, upon the ground that they were within the spirit and reason of the provision.

In People v. Jackson, recently decided by this court, literal effect was not given to the words of a particular clause, because an interpretation thus restricted would not have been in harmony with other parts of the same section and other parts of the Constitution relating to the same subject, and all read together constituting and being in fact a part of an entire system for the perpetuation of the Supreme Court and the election and appointment of justices of that court. The construction there given to and the limitation put upon the operation of the last clause of § 9 of art. 6 of the Constitution did no violence to language, gave full effect to every part of the instrument relating to the same subject-matter and to the plainly declared intent of its framers, and was in the spirit of a principal canon for the interpretation of written instru

Opinion of the Court, per ALLEN, J.

ments, that every part should be read together, and, when possible, consistently with the language employed, such interpretation given to each clause as will make every other clause and part operative and effective.

There is no occasion for the application of this rule of construction in this case. Section 21 of art. 6 is complete in itself, and is independent of every other part of the Constitution.

The prohibition is simple and direct, contained in a single paragraph, the terms of which are apposite, conveying a distinct and definite idea, and if they are extended it can only be done by conjecture as to the possible intent of the framers of the clause, and upon a theory as to some policy supposed to be shadowed forth. The effect of the prohibition cannot be enlarged by conjecture or implication. If it should be attempted to include judicial officers other than those named, for the reason that they are within the spirit and policy of the prohibition, it would be difficult to draw the line and say which should be included and which excluded, and the interpretation and operation of the Constitution would depend much on judicial discretion.

The decision of the court below is well sustained by the opinion of Judge JACKSON at Special Term. With the question suggested as to the propriety of commissioners of appeals acting as referees, we have no concern.

The order must be affirmed.

All concur.

Judgment affirmed.

Statement of case.

49 e172

49 286

117 337 SOLOMON D. WEAVER, Respondent, v. JAMES P. BARDEN,

49 286

126 192

49 286 129 354

49 286 135 49 49 286 160 312 49 286 171 8181

Appellant.

The capital stock of an incorporated company is personal property; it has not, nor has the certificate or other evidence of title or ownership, any of the qualities of commercial or negotiable paper.

As a rule, the purchaser or assignee of shares of the capital stock in a corporation acquires no other or better title than the seller or assignor has, and takes it subject to the legal and equitable rights of third persons. 286 The owner cannot be divested of his property except by his own voluntary 1582 act and consent, or by some act which would be effectual to give title, as against him, to other movable property and choses in action.

172 1584 75 AD 438

If the rightful owner has invested another with the usual evidence of title, or
an apparent authority to dispose of it, he will not be allowed to make
claim against an innocent purchaser for a valuable consideration, dealing
upon the faith of such apparent ownership or right of disposition.
To entitle a purchaser to the protection of a court of equity as against the
legal title or a prior equity, he must not only be a purchaser without
notice, but he must be a purchaser for a valuable consideration actually
paid; he must have paid the purchase-money, or some part thereof, or
have parted with something of value upon the faith of such purchase,
before he had notice of the prior right or equity. Mere security given
for the purchase-money, or a credit upon a pre-existent debt, is not
sufficient.

Where stock is transferred partly in payment of a precedent debt and partly
for a consideration paid at the time, the purchaser will not be regarded
as a holder for value as against one having the legal title or a prior equity,
so far as the assignment was received in payment of the precedent debt
(GROVER, J., dissenting), but is entitled to a lien for the amount of the
consideration paid, and to a repayment of that amount, before he will be
required to reconvey the stock.

(The authorities upon the question as to who is a bona fide holder for value
collated and discussed.)

Under à general denial in an answer, defendant has the right to give evi-
dence controverting any facts necessary to be established by plaintiff, but
not to prove a defence founded upon new matter.
The complaint alleged in substance that plaintiff purchased certain shares
of stock, but that the stock was, without plaintiff's knowledge or assent,
transferred to a third person, who subsequently transferred the same to
defendant, and that the latter refused to transfer, etc. Held, that under
a general denial defendant could not prove that he was a bona fide pur-
chaser for value. (GROVER, J.)

(Argued February 28, 1872; decided April 30, 1872.)

Opinion of the Court, per ALLEN, J.

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order reversing a judgment in favor of defendant (which was entered upon decision of the court at Special Term), and directing a judgment in favor of plaintiff.

Action to compel a transfer of thirteen shares of the stock of the Knickerbocker Stage Company of New York. The facts sufficiently appear in the opinion.

S. C. Keeler for the appellant. As the reversal was not upon questions of fact, the court will not look behind the findings. (Morse v. Liverpool Ins. Co., 35 N. Y., 664; Baldwin v. Van Duzer, 38 id., 487.) The title to stock was not vested in Finch. (Thatcher v. Candee, 33 How., 145.) Every presumption is in support of judgment. (Grant v. Morse, 22 N. Y., 323; Carman v. Pultz, 21 id., 547.) Under general issue defendant could show title out of plaintiff. (Robinson v. Frost, 14 Barb., 536; Schuyler v. Hud. R. R. R. Co., id., 653; Miller v. Decker, 40 id., 228.) Defendant was a bona fide purchaser. (Saltus v. Everett, 20 W. R., 267; Hoffman v. Oprah, 22 id., 285; Talman v. Labosh, 1 arow Duer, 354; Crocker v. Crocker, 31 N. Y., 507; McNeil v. Tenth National Bank of N. Y., Alb. Law Journal, vol. 5, p. 43; 46 N. Y., 325.)

D. B. Prosser for the respondent.

ALLEN J. The plaintiff furnished the consideration for the transfer of the shares of stock from Finch, the original owner, the same having been made in satisfaction of a debt due him from the assignor. The stock was transferred into the name of a son of the plaintiff, who was also a son-in-law of the defendant, without the knowledge or consent of the plaintiff, who had no knowledge that the transfer had been made in that form until some time in 1864, long after the transfer by the son to the defendant. The son, at the time of the transfer by Finch, was, in the language of the report of the referee, "to some extent the agent of the plaintiff in New York."

arow/

Opinion of the Court, per ALLEN, J.

The stock was transferred by the son of the plaintiff to the defendant in January, 1860, “in part payment of an indebtedness from said Llewellyn (the son) to defendant of over $2,500;" and "the defendant at the same time sold and delivered to said Llewellyn 280 pounds of butter, at twenty cents per pound, amounting to seventy dollars, which was a part of said indebtedness, paid in part as aforesaid." "Such purchases of said stock were made by defendant's son, acting as his agent; and the sum of $520, the amount agreed upon as the value of said stock, was, by the defendant, credited upon the indebtedness of said Llewellyn by the defendant."

The evidence is that the butter was sold to the assignor of the stock on the third of January, 1860, and the stock was transferred the day following.

The account between the defendant and Llewellyn Weaver was made an exhibit by the defendant, and discloses a long account, commencing in 1852; the last item on the debtor side of which is the charge of seventy dollars for the butter; and the first item on the credit side is the sum of $520 for the shares of stock.

The transaction was simply a transfer of the shares of stock by Llewellyn Weaver, and a subsequent entry by the defendant, in his books, of the credit for the purchase-price. No security was surrendered, and no voucher given.

The defendant parted with nothing as a consideration for the transfer.

The capital stock of an incorporated company is personal property; and it has not, neither has the certificate or other evidence of title or ownership, any of the qualities of commercial or negotiable paper.

As a rule, the purchaser or assignee of shares of the capital stock in a corporation acquires no other or better title than the seller or assignor has, and takes it subject to the legal and equitable rights of third persons. The rightful owner may be estopped by his own acts from asserting his title, as he may be in respect to other property of a like character. If he has invested another with the usual evidence of title,