In Mrs. Craft's Case, the plaintiff received from Reed, as broker, a certificate of the stock in her name, which he said he had bought for her, and there is nothing to show that this is not the usual way in which brokers transact such business. It is a matter of common knowledge that brokers usually see to the transfer of stock for their customers. Apparently Mrs. Craft acted as a purchaser through a broker usually acts, and we see no want of due care on her part. while acting for his principal, of facts affecting the character of the transaction, is constructive notice to the principal. Suit v. Woodhall, 113 Mass. 391; Sartwell v. North, 144 Mass. 188, 10 N. E, Rep. 824; Bank v. Cushman, 121 Mass. 490; The Distilled Spirits, 11 Wall. 356. There is an exception to this rule when the agent is engaged in committing an independent fraudulent act on his own account, and the facts to be imputed relate to this fraudulent act. It is sometimes said that it cannot be presumed that an agent will communicate to his principal acts of fraud which he has committed on his own account in transacting the busi the old certificate must also be made by him | agent of Henshaw & Co., or the undisclosed or by his attorney. There is no provision principal. In issuing the new certificate he that it shall be made by the purchaser as was the agent of the defendant, and, as the the assignee or attorney of the seller. If the plaintiff cannot now be put in statu quo, the seller undertakes, with the purchaser, to defendant must bear the loss. make the surrender and the transfer on the books of the company, the only thing left for the purchaser to do is to call upon the corporation for the new certificate. We see no good reason for holding that there is a duty on the part of the purchaser towards the corporation to see to it that the seller of stock surrenders his certificate and transfers it in the books of the corporation. That is the duty of the corporation towards both the seller and the purchaser when a new certiticate is issued. If the purchaser exhibits to Another question arises in her case, from the corporation a forged assignment of stock, the fact that Reed, who committed the fraud or a forged power of attorney to assign it, upon the defendant, was also her agent in the and thus obtains a new certificate, which he transaction. If he be regarded as acting in sells, he is liable to the corporation, because two capacities and as having committed the he has impliedly represented the signature to fraud in his capacity as treasurer, he yet, as be the genuine signature of a stockholder, her agent, knew of and participated in it. Is whereby he has deceived the corporation, not this knowledge to be imputed to her in debecause it is his duty to attend to the trans-termining her rights against the defendant? fer of stock. Railroad Co. v. Richardson, The general rule is that notice to an agent ubi supra. Before the passage of the statute of 1884, c. 229, if not since, the transfer of stock was usually attended to by brokers. Many shares of stock represented by a single certificate were often sold in parcels to many different persons, and the seller made but one surrender, with powers of attorney to transfer the parcels to the different purchasers. A purchaser of stock violates no duty to the corporation when he trusts to the seller to make the assignment and the surrender of the old certificate. The utmost that can reasonably be contended is that the fact that a certificate is not exhibited and delivered with a power of attorney to the purchaser is a circumstance to be considered up-ness of his principal, and that the docrine of on the question whether the purchaser has imputed knowledge rests upon a presumption acted in good faith and with due care. In that an agent will communicate to his prinAllen's Case it is expressly agreed that cipal whatever he knows concerning the busi"Henshaw & Co. acted in good faith, and ness he is engaged in transacting as agent. the whole transaction, on their part, was in It may be doubted whether the rule and the accordance with their general custom, and exception rest on any such reasons. It has in accordance with the general custom of been suggested that the true reason for the brokers in Boston," and that "nearly all of exception is that an independent fraud comthe transfers of defendant's stock made in mitted by an agent on his own account is its books while said Reed was treasurer, and beyond the scope of his employment, and being upwards of two thousand in number, therefore knowledge of it, as matter of were made by said Reed as attorney of the law, cannot be imputed to the principal, parties making the transfer; and several hun- and the principal cannot be held respondred of said transfers, the validity of which sible for it. On this view, such a fraud bears has never been questioned by said corpora- some analogy to a tort willfully committed by tion, were made by virtue of powers of at- a servant for his own purposes, and not as a torney like that given by Henshaw & Co., means of performing the business intrusted and where no certificate of the stock so trans- to him by his master. Whatever the reason ferred was ever issued to the person or firm may be, the exception is well established. giving the power of attorney for the trans- Kennedy v. Green, 3 Mylne & K. 699; Esfer;" it not being "the custom of brokers to pin v. Pemberton, 3 De Gex & J. 547; Roltake certificates of stock in their own names, " land v. Hart, L. R. 6 Ch. 678; In re Bank, "when transferred to them for the purpose L. R. 5 Ch. 358; Cave v. Cave, L. R. 15 of sale.' On these facts we think it clear Ch. Div. 639; Kettlewell v. Watson, L. R. that Allen exercised due care in obtaining 21 Ch. Div, 685, 707; Innerarity v. Bank, 139 a transfer of the stock, and that Reed in making the transfer was not his agent, but the Mass. 332, 1 N. E. Rep. 282; Dillaway v. Butler, 135 Mass. 479; Atlantic Mills v. Orchard Mills, 147 Mass. 268, 17 N. E. Rep. 496;| FIELD, J. William Reed was treasurer of the defendant, and also a broker. As broker, This case seems to us to fall within the ex- he sold bonds for the plaintiff, and sent to ception. Although the fraudulent act of her his personal check for the proceeds, Reed may not have been committed with the amounting to $2,575, and at the same time intention of cheating the plaintiff, yet that wrote to her as follows: "If you wish to loan was its legal effect, and it was a fraudulent this on call, can lend it to South Boston Railact committed by him for his own benefit, road Company at five per cent. interest, and the actual effect of which would have been you can have it at any time, at one day's to wholly avoid the transaction if the plain- notice. The plaintiff thereupon called uptiff had known of it. The present cases, we on Reed, and said that she would lend $2,500 think, fall within the principle that where to the defendant; and she gave back to him one of two innocent persons must suffer loss his check, and two days later received by from the fraud of a third the loss must be mail, from Reed, the note in suit. Interest borne by him whose negligence enabled the was paid on the note at three different times, third person to commit the fraud. The de- for six months each, by Reed, by his individfendant cannot be compelled to issue new cer-ual check. The plaintiff believed that everytificates, or to recognize the old ones as valid, because to do so would cause an overissue of its capital stock, but it is liable in damages. In assessing damages, the superior court has taken the value of the stock to be its market value at the time when the defendant first refused to recognize the stock as valid, and to permit a transfer of it. This would be the rule of damages if the certificates were valid. Sargent v. Insurance Co., 8 Pick. 90; Wyman v. Powder Co., 8 Cush. 168. We think that the same rule of damages applies to these certificates. In re Railroad Co., L. R. 3 Q. B. 584. The cases having been submitted on agreed statement of fact, no question arises as to the form of the action. Upon the plaintiffs severally filing in the superior court the certificates, properly assigned to the defendant, judgments may be entered for the plain tiffs. So ordered. (150 Mass. 207) CRAFT v. SOUTH BOSTON R. Co. thing was right and honest on the part of Reed, and that he had authority to make the loan, and give the note in question, as binding on the defendant. She was ignorant of any by-laws of the defendant, and made no inquiries about them. The note is for $2,500, on demand, after date, payable to the order of the plaintiff, and is signed: "SOUTH BOSTON RAILROAD CO. By WM. REED, Treas." It is not countersigned by the president of the company. The by-laws of the company provide that "the treasurer shall, in the name of the company, sign and indorse all promissory notes and drafts of the company as he may be required by the directors, and the same shall be countersigned by the president." No The directors voted, December 18, 1884, "that the president and treasurer, with the approval of the finance committee, be authorized to borrow a sum not exceeding $40,000, for the uses of the company." vote was ever passed authorizing the treasurer alone to borrow money for the company, or to sign a promissory note in behalf of the company. Reed, never, in fact, with the knowledge of the directors, borrowed money for the company, and gave its notes therefor. 1. In an action against a corporation on a prom-Reed's testimony was "that all loans before issory note, it appeared that the note had been given by its treasurer for money borrowed, ostensibly for the corporation, and was signed, in the corporate name, by him, as such treasurer. The by-laws of the defendant provided that all notes should be signed by the treasurer and countersigned by the president; but of this plaintiff was ignorant. The treasurer had never been authorized to borrow money for the defendant, nor to sign any notes in its behalf, nor had the defendant ever represented that he had such authority. Held, that the act of the treasurer, being without authority, was not binding on defendant, and plaintiff could not recover on the note. 2. Where it appears that the money was used to pay the debts of the corporation, but that the treasurer, being a defaulter, had borrowed the money to cover up his shortage, the plaintiff cannot recover the amount thus borrowed under a count for money had and received. Report from superior court, Suffolk county. Action of contract on a promissory note of the South Boston Railroad Company to Rebecca B. Craft. S. Lincoln and A. D. McClellan, for plaintiff. J. G. Abbott, J. S. Dean, and C. T. Gallagher, for defendant. this one were made according to the provisions of the defendant's by-laws, except in a few instances, several years before this transaction, when he had borrowed money of a brother of a person who was then president of the defendant, and also of the then president, but who had ceased to hold that office some years before the note in suit was given, but that those loans were not entered on defendant's books, and were not communicated to any of the defendant's officers, except the then president." It is plain that Reed had not authority, in fact, to borrow this money for the company, and to give its promissory note. Whatever may be true of trading corporations, there is nothing in the nature of the business of a horse-railroad corporation, or of the duties of a treasurer of such a corporation, which implies that the treasurer, by virtue of his office, has authority to borrow money for the company, and to give its notes therefor. It does not appear that the company in any way held out Reed to the public or to the plaintiff as having any such authority, or that treasurers of horse-railroad | W. L. Plaisted, but during said period, up corporations customarily have or exercise any to the time of the attachment hereafter mensuch authority. The action, therefore, can- tioned, said husband, by plaintiff's consent, not be maintained on the note. said hay on a writ of attachment in favor of Alonzo A. Knight, against said W. L. Plaisted and his son H. M. Plaisted, and said writ was duly returned to the superior court for the county of Suffolk, and the action is now pending therein. At the time said writ was sued out and attachment made, said W. L. Plaisted and H. M. Plaisted were, and they still are, indebted to said Knight. The plaintiff asked the court to rule that upon these against plaintiff's husband and his copartner; that upon said facts the hay was not attachable on a writ against the husband; and that the hay could not be severed from the farm, under the circumstances, either by the husband or his creditors; and that the defense was carrying on said farm in his own name, The declaration also contains a count for on his own account, and for his own benefit, money had and received, and the court, try- in the ordinary mannner of conducting a ing the case without a jury, "found, upon farm; having, in connection with it, the use the evidence of Reed, that the $2,500 bor- of said personal property. The hay which is rowed by him of the plaintiff was used by the subject of this suit, and amounting to 20 him for the payment of the debts of the de- tons and more, was gathered by said husfendant, and so came to its use," and there-band upon said farm during the year 1886. fore made a finding in favor of the plaintiff The defendant, as deputy-sheriff, attached for the amount of the note and interest. Reed's testimony was that he had embezzled large sums of money from the defendant, and that "he could not tell what debts of defendant he had paid out of the $2,500 received from the plaintiff, and that he had used it to cover up and conceal his shortage to the defendant, but that he used it to pay the debts of the defendant." Whether a person, under any circumstances, can be made a debtor for money borrowed by another for him with-facts the hay was not attachable on a writ out authority, and appropriated to his use without his knowledge or consent, need not be considered. See Kelley v. Lindsey, 7 Gray, 287. No obligation on the part of the defendant ought to be implied in this case because Reed was a defaulter, and the money was used to cover up his defalcation by pay-sought to be set up in justification by the ofing debts of the company which the money of the company, if he had not embezzled it, would have been used to pay. The only reasonable inference is that Reed's primary purpose in using the money in this way was to escape detection, and benefit himself. Whether it was a benefit to the company that he was able to obtain and use money for this purpose is necessarily uncertain. The money was not borrowed bona fide for the use of the company. See Bank v. Lowell, 109 Mass. 214; Bank v. South Hadley, 128 Mass. 503. By the terms of the report, there must be judgment for the defendant. So ordered. (150 Mass. 275) PLAISTED v. HAIR. Where a wife gives to her husband the use of her farm, and the personalty thereon, hay severed by him from the land before the license is revoked is subject to attachment for his debts. Exceptions from superior court, Worcester county; DEWEY, Judge. ficer in the evidence was not admissible under the answer. The court refused so to rule, and ruled that the hay was subject to attachment by a creditor of the husband, found for defendant, and ordered a return of the hay attached. The plaintiff excepts to said rulings and refusals to rule. W. A. Gile, for plaintiff. Baker & Curry, for defendant. FIELD, J. It is settled that hay in a barn on a farm can be attached in an action at law against the owner of the hay. Campbell v. Johnson, 11 Mass. 184; Bank v. Jewett, 119 Mass. 241. It is not, perhaps, entirely clear, from the exceptions, whether the justice, who heard this case without a jury, found for the defendant on the ground that the burden was on the plaintiff to prove that, a certificate had been recorded such as is required by Pub. St. c. 147, § 11, and that, this not having been shown, the property, although the wife's, was liable to be attached by a creditor of the husband, or on the ground that the facts found showed that the hay was absolutely the property of the husband; but we infer that the case was decided on the latter ground. This was an action of replevin, tried before the court without a jury. At the trial The facts found in respect to the occupaevidence was introduced which established tion of the farm by the husband are that the the following facts: The plaintiff, from May wife owned the farm, with the oxen, horses, 4, 1885, to the date of her writ, was the own- cows, and other personal property upon it; er of a farm situated in the town of Oxford, that she "lived on said farm with her husin said county, containing about 150 acres of band," who, by her "consent, was carrying land, and consisting of tillage, pasture, mow-on said farm in his own name, on his own ing, and wood lands, together with oxen, horses, cows, and other personal property thereon. During the years 1885 and 1886, plaintiff lived on said farm with her husband, account, and for his own benefit, in the ordinary manner of conducting a farm, having, in connection with it, the use of said personal property," and that the hay which 1 was attached was raised and gathered from | Heald v. Insurance Co., 111 Mass. 38; Warthe farm by the husband while he was carry- ner v. Abbey, 112 Mass. 355; Walker v. ing it on in this manner. It has been held Fitts, 24 Pick. 191; Delaney v. Root, 99 that the statutes requiring a married woman Mass. 546; Orcutt v. Moore, 134 Mass. 48. doing business on her separate account to file From the findings of fact in this case, it was or record a certificate, applies only to person-competent for the court to infer that it was al property. Bancroft v. Curtis, 108 Mass. the intention of the wife that the hay, when 47. In Wheeler v. Raymond, 130 Mass. severed, should become absolutely the prop247, the jury found that the business of car-erty of the husband. Does the rule of law rying on a livery stable, in which certain that the wife cannot make contracts with her horses and carriages belonging to the wife husband, or transfer property to him, prevent were used, was the business of the husband, him from acquiring title to property which is and not of the wife, and the court say: "It produced, by his labor, upon her property, appeared that the property of the wife, being which she has permitted him to use for his a number of horses and carriages, was used own benefit? In Wheeler v. Raymond, ubi by the husband in carrying on the business, supra, it seems clear that the earnings of the for the use of which he agreed to pay the livery stable which was kept by the husband plaintiff [the wife] one-half of the profits of belonged to the husband, although some of the business. But this agreement, being be- the horses and carriages used in the business tween husband and wife, was utterly null | belonged to the wife. There is more difficuland void. The case presented, then, is one ty when the property of the wife, which the where the wife, owning separate property, husband is permitted to use, is land. The permits her husband to use it in carrying on consent of the wife that her husband might his business. We are of opinion that this occupy and till the land for his own benefit cannot fairly be deemed doing business on did not make him her tenant, or convey to her separate account,' within the statute, so him any interest in the land. He was not as to require her to file a certificate in order even a tenant at will. He cannot be treated to exempt the property from liability for her as a disseisor, who, until entry by the dishusband's debts. If it was done with the seisee, would be entitled to the annual crops; fraudulent purpose of deceiving the public and he was not the servant or agent of his and giving the husband a fictitious credit, wife, because he was acting on his own acperhaps she might be estopped by the fraud count. With his wife's consent, he had exfrom claiming the property; but no such pended money and labor in raising and gathpoint is raised in this case. The court, there-ering annual crops from her land for his own fore, rightly refused to rule as requested by use. He was the licensee of his wife, and the defendant." The ruling requested in that case, which was refused, was to the effect that the neglect of the wife to file a certificate pursuant to St. 1862, c. 198, constituted "a bar to her recovery in this case, and that the property, although owned by her, was liable to be attached by her husband's creditors." These decisions indicate that if, in the case at bar, the husband was carrying on the farm on his own account, the farm it-ered from the land by the husband before the self, and the oxen, horses, cows, and other personal chattels on it, which belonged to the wife, could not be attached by his creditors, although a certificate had not been recorded pursuant to Pub. St. c. 147, § 11. The hay was the produce of the farm, and, on the facts found, must have been gathered by the labor of the husband, or by laborers whom he had hired; and it must be assumed that the court inferred that the cost of gathering it was borne by the husband. Our statutes do not authorize a wife to make contracts with her husband, or to transfer property to him. Pub. St. c. 147, §§ 2, 3; St. 1884, c. 132. If the husband had been a person with whom the wife could make a contract, the inquiry would be whether, by virtue of the contract, the hay, after it was severed from the land, became the property of the husband, or remained her property, and was to be spent upon the farm in feeding cattle and in making manure for the use of the farm. Butterfield v. Baker, 5 Pick. 522; Lewis v. Lyman, 22 Pick. 437; Munsell v. Carew, 2 Cush. 50; she had in effect given him the use of the farm, and he had enjoyed this use, and at his own expense had raised and gathered the hay for himself while the license remained in force. Both his property and hers had been consumed in producing the hay, and it is not, strictly speaking, a case of the gift of personal chattels by the wife to the husband. We are of opinion that, as the hay was sev license was revoked, and was taken into his possession as his own, and as it had been raised and gathered at his own expense, the hay was his property. The title was acquired from the labor and money which he had expended in raising and gathering it under the consent given by the wife. If a wife give to her husband the use of her real or personal property, we think that it is reasonable to hold that the earnings which result from this use by the expenditure of his labor and money upon the property, and which are not a part of, or an accretion to, the property itself, must be regarded as belonging to the husband, when no fraud on her creditors is intended; and, even if the transaction were in fraud of her creditors, she could not claim the property. No question of fraud arises in this case; and, on the facts found by the court, we think that the defendant was not entitled, as matter of law, to the rulings asked for, and that it was competent for the court to find for the defendant. Exceptions overruled. (150 Mass. 289) DOWER MCMAHON et al. v. GRAY. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 30, 1889.) INTEREST-ATTACHMENT-CREDITORS' BILL. 1. The right of a dowress to have dower assigned to her out of the lands of her deceased husband cannot be attached or taken on execution in an action at law. 2. But such right may be reached by creditors in equity, under Pub. St. Mass. c. 151, § 2, cl. 11, as amended by St. Mas3. 1884, c. 285, which authorizes bills by creditors to reach any property, right, title, or interest, legal or equitable, of a debt or within the state which cannot be taken on execution. Appeal from superior court, Worcester county; STAPLES, Judge. 389, 9 N. E. Rep. 747. But, as was said in Sears v. Sears, "the title thus vested in the widow wholly differs from a mere right of dower, which extends to all lands owned by the husband at any time during the coverture, and confers no seisin until it has been assigned to her." Before the dower is assigned, the widow has no legal estate in the land upon which an execution can be levied. Gooch v. Atkins, 14 Mass. 378; Hiidreth v. Thompson, 16 Mass. 190; Croade v. Ingraham, 13 Pick. 33. At common law, a dowress could not enter until her dower had been assigned. After dower had been assigned, and she had entered into possession, she beThis was a suit in equity by Michael F. came immediately seised for her life of a McMahon and John Burns against Catherine freehold estate, with the usual incidents of Gray, to have the right of defendant to have such an estate, and she could convey it, and dower assigned to her out of the real estate it could be taken on execution by her creditof her deceased husband applied to the pay-ors. Windham v. Portland, 4 Mass. 384, 388; ment of plaintiffs' debt, and to have a receiver Sheafe v. O'Neil, 9 Mass. 13. appointed with authority to petition, in defendant's name, to have said dower assigned, and to receive the rents and profits thereof. Defendant demurred to the bill, which demurrer was sustained, and plaintiffs appeal. Pub. St. Mass. c. 151, § 2, cl. 11, authorizes bills by creditors to reach any property, right, title, or interest, legal or equitable, of a debtor within the state which cannot be taken in execution. The amendment, (St. 1884, c. 285,) so far as material, is as follows: "A bill in equity may be maintained to reach and apply in payment of a debt any property of a debtor, as provided by clause eleven of section two of chapter one hundred and fiftyone of the Public Statutes, not withstanding the fact that the plaintiff's debt does not equal one hundred dollars in amount, or that the property sought to be reached and applied is in the hands, possession, or control of the debtor, independently of any other person, or that it is not within the state, or that it is of uncertain value: provided, the value can be ascertained by a sale or appraisal, or by any means within the ordinary procedure of the court, or that it cannot be reached and applied until a future time." Verry & Gaskill, for plaintiff. J. H. Bancroft, for defendant. FIELD, J. We think it clear that the right of the defendant to have dower assigned to her out of the lands of her deceased husband cannot be attached or taken on execution in an action at law. The statutes relating to dower have not made a dowress a tenant in common with others in the lands of her deceased husband. The statutes which in some cases give to a widow, in lieu of dower, an estate for her life in one-half of the lands of which her husband died seised in fee, or which give to her an estate in fee in such lands to an amount not exceeding $5,000, have been held to be modifications of the statute of descent, and to vest the title to these estates in the widow immediately on the death of her husband. Sears v. Sears, 121 Mass. 267; Lavery v. Egan, 143 Mass. It is manifest that the reason of the common-law rule that a widow could not convey to another her right to have dower assigned, or enter upon the land before the assignment, as well as of the rule that her right could not be taken on execution, was not founded upon any policy of the law that dower should be a provision for her support, which should be exempt from liability to be taken by her creditors, because she could not enjoy her dower until it was assigned, and then it at once became alienable by her, and liable to be taken on execution to satisfy judgments obtained against her. The right to have dower assigned is a valuable right to property, and in the present case it is a right to land within this commonwealth, which the dowress can have set off to her whenever she chooses, by legal process if necessary. By the weight of authority it is a right which in equity she can assign to another, and courts of law will recognize the assignment to the extent of enabling the assignee to maintain a writ of dower in her name. Lamar v. Scott, 4 Rich. Law, 516; Robie v. Flanders, 33 N. H. 524; Potter v. Everitt, 7 Ired. Eq. 152; Tompkins v. Fonda, 4 Paige, 448; Strong v. Clem, 12 Ind. 37; Payne v. Becker, 87 N. Y. 153; Pope v. Mead, 99 N. Y. 201, 1 N. E. Rep. 671; Davison v. Whittlesey, 1 MacArthur, 163. The fact that the lands described in the bill are lands of which her husband died seised, and that she is in occupation, and may continue in occupation, under Pub. St. c. 124, § 13, without having her dower assigned, if the heirs or devisees do not object, does not change the essential nature of her right. This provision of the statutes was undoubtedly enacted for her benefit; but we are unable to see any indications that it was enacted for the purpose of exempting her right of dower from being taken to satisfy her debts. She continues to have the same right and power to compel an assignment of dower that a dowress had before the Statute of 1816, c. 84, was enacted. See Rev. St. c. 60, § 6, and commissioner's note, Gen. St. c. 90, §7; Pub. |