shall be delivered up to justice-a significant and comprehensive expression, plainly importing that the delivery is for the purposes of public justice, without qualification." Whether this is a correct construction of the treaty or not depends entirely upon the connections in which the phrase "delivered up to justice" is used; and to these the Judge makes no reference.

It so happens that the treaty specifies seven crimes as the only ones for which there shall be any delivery; that it requires in each case a distinct charge of a definite crime or crimes within the list; that this crime, or these crimes, must be proved to the satisfaction of the government asked to make the delivery; and that by these terms, which are express parts of the treaty, the "justice" referred to in it is and must be that, and that only, which lies within the circle of the terms. The connec

tions conclusively show that the delivery is not for "the purposes of public justice, without qualifica

tion." It is just the reverse. It is for a specified purpose, clearly stated and carefully guarded in the treaty; and this is a "qualification." To detach the phrase from its connections, and then impose a meaning upon it ad libitum, is not interpreting the treaty at all. There can be no delivering up to justice under this treaty for more than some one or more of seven particularly enumerated crimes, or for any one or more of these crimes, without a formal charge designating the crime or crimes for which the delivery is asked, or even then unless the crime or crimes charged shall be proved by sufficient evidence.

If this does not mean that the "justice" referred to shall be limited and qualified by these terms, then what does it mean? The conditions associated with the delivery, and forming a vital part of the transaction, show that what was so plain to the Judge is just the opposite of what he states it to be. It is not possible, with his understanding of the treaty, to invent a respectable reason for its provisions in respect to the crimes for which extradition may be had, and for the proceedings necessary to secure it. Why is extradition surrounded with these provisions if they are not meant to be limitations upon it and its purposes.

3. Reference was made by the Judge to the Act of Congress passed in 1848, by which the Secretary of State is authorized to order the offender "to be delivered to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly." The words in italics are precisely the words used in the British act, passed soon after the negotiation of the treaty. Judge Benedict, in his comment upon these words, says: "The provision of the Act of 1848 is within the

broad provision of that treaty, but it does not restrict the operation of that provision; and it may be safely assumed that, if the intention to limit the effect of, or give a construction to, that or any other treaty had been entertained-assuming such a function to belong to a statute of this character-that intention would have been plainly expressed." Let us look at this language.

By "the broad provision of that treaty" the Judge evidently means a provision for the delivery of the accused person "for the purposes of public justice, without qualification." This is a construction of the treaty which, as we have just shown, is in conflict with its express terms. The treaty contains no such "broad provision." The legislative acts of the two governments for its execution are not "within the broad provision of that treaty," but simply parallel with it, neither restricting nor enlarging its operation. What they propose is that the person who, according to the provisions of the treaty, should be delivered up, shall be so delivered. For what purpose? The answer of both acts is that he may be "tried for the crime of which such person shall be so accused." The phrase "so accused " refers to the proceedings which have been taken in the case, and which have resulted in making and

establishing the specific accusation according to the

provisions of the treaty. While there is no attempt in either act to change the treaty in any way, there lies upon the very face and in the language of both acts the distinct implication, which equally lies in the express terms of the treaty, that the person delivered up is to be tried only for the offense "charged" within the limits of the extradition list, and proved by the proper evidence, and of which he has been "so accused." Both acts point directly to this offense, and to no other; and this is just as true of the treaty.

Now, to infer, as Judge Benedict does, that the party having been delivered up for the crime of which he has been "so accused," may be tried for other offenses, because there is no express declaration that he shall not be so tried, is not only to draw a conclusion where there are no premises, but to run counter to the plain and natural implication of the language. If a principal should direct his agent to invest a thousand dollars in a given stock, and the latter should make the investment in some other stock, it would be rather a sorry answer for the faithless agent to say that he was not expressly directed not to make the investment he did make; and yet his logic and that of Judge Benedict, in this case, would not materially differ.

4. The Judge also refers to the act of Congress passed in 1869 for the protection of extradited persons brought to this country, against "lawless violence;" and he is entirely correct in limiting the purpose of this act to such protection. Yet, the act, like that of 1848, proceeds upon the assump

ernment of the United States was not attempting to exercise in respect to the party arraigned before him. His reference to the case of Heilbronn, which occurred in 1854, is not pertinent, as we shall show in another connection, since the prosecution was a private one, and the British Government did not at the time know that the prisoner had been tried for any offense other than the one for which he was surrendered. The case of Burley, to which he refers, and which we shall consider hereafter, fails to establish a practice as between the two governments; and all that there is in the case consists, not in what was done with the prisoner, but in what was said by the then law-officers of the British Government, but not diplomatically said to the United States.

There are several other points in the plea and rejoinder of Lawrence to which Judge Benedict refers; but as they have no bearing upon the construction of the treaty-the only question we are considering--we pass them without notice. Whether these points were good or bad is a matter of no consequence in relation to the meaning of the treaty. That meaning, as the Judge construed it in the case of Caldwell, and also that of Lawrence, allows the trial of an extradited person for any offense, no matter what, and no matter whether it is or is not included in the list of extradition crimes, and equally no matter whether it was or was not brought under consideration in the extradition proceedings, or specified in the warrant of delivery. The British Government, in the Winslow correspondence, took the ground that this is not the doctrine of the treaty, or of the principles and purposes of extradition. We think the British Government right and Judge Benedict wrong on this subject.

TRANSFER OF SHARES IN NATIONAL BANKS.

UNITED STATES CIRCUIT COURT, EASTERN DISTRICT OF MISSOURI, FEBRUARY 8, 1878.

JOHNSON, Receiver, etc., v. LAFLIN. Shareholder's right to transfer shares in a National Bank-Elements of a complete transfer-Certificates— Blank power to transfer-Registration of transferRev. Stats., §§ 5139, 5141, 5201, 5251, construed.

1. Under the national banking act, a shareholder has the right to make an actual and bona fide sale and transfer of his shares to any person capable in law of taking and holding the same, and of assuming the transferor's liabilities in respect thereto; and, in the absence of fraud, this right is not subject to a veto by the directors or the other shareholders.

2. Where such a sale of shares is made and the transfer entered on the books of the bank, the transferor ceases to be a shareholder, and is freed from liability in respect of such shares.

3. The provision of the national banking act (Rev. Stats., 85139) that shares shall be transferable on the books of the association," construed: and held not to give the directors the power to refuse to register a bona fide transfer of stock without some valid and sufficient reason for such refusal.

4. As between the seller and purchaser of shares in a national bank, the sale is complete when the certificate of the shares duly assigned, with power to transfer the same on the books of the bank, is delivered to the buyer, and payment therefor is received by the seller; and either the purchaser or seller may compel a registration of the transfer on the books of the bank, unless the bank has some valid and sufficient ground for refusing to register the transfer.

5. The defendant, Laflin, owning full paid shares of stock in a national bank of which his co-defendant, Britton, was the president, employed a broker to sell the same in the market; the broker, without Laflin's direction or knowledge at the time, sold the same at the market value to Britton individually, and received in payment his individual check on the bank for the purchase-price, and delivered to the purchaser the share certificates assigned in blank, with blank powers of attorney thereon indorsed, authorizing the transfer of the shares on the books of the bank; subsequently, after the amount of the check had been collected, but on the same day, the president, without the knowledge of Laflin or the broker, directed the book-keeper of the bank to credit his individual account with the amount of the check which he had given for the shares, and to transfer the shares (the book-keeper inserting his own name in the blank power of attorney as attorney to make the transfer) to Britton, "trustee," not specifying for whom he was trustee, and charging the sum to the "sundry stock account" of the bank, all of which was done. The bank, although it had not committed any act of insolvency, was then insolvent, but this fact was not known by Laflin or the broker. Held, that, although the bank, or its officers for it. was prohibited from purchasing its own shares (Rev. stats.. 8 5201), yet that Laflin having sold in good faith, without notice of the illegal purpose of Britton in buying the stock, or of his intended misappropriation of the funds of the bank in paying therefor, was not liable to pay back to the receiver the money received in payment of the shares.

plaintiff is the receiver of the National Bank of

Tthe State of Missouri, appointed June 23, 1877, by

the comptroller of the currency.

That bank suspended payment and closed its doors June 20, 1877.

The defendant, Laflin, had, for some years prior to May 16, 1877, been the owner of 85 shares of full-paid stock in that bank, but was not a director. The defendant, Britton, was the president of the bank.

On the 10th day of May, 1877, Mr. Burr, the president of another bank in which Laflin was a director, wrote a letter to a correspondent, who was the owner of stock in the National Bank of the State of Missouri, stating (without giving the grounds of his advice), "you had better sell your stock in that bank, because you can buy it back again at a profit if you wish to do so. Mr. Burr casually showed Laflin this letter and said, "Go do likewise." An election was to be held for directors on the 29th day of May, 1877, which it was supposed would give the stock a greater value in the market before the election than it would have after that event.

Acting upon this general advice of Mr. Burr, and without personal knowledge of the actual financial condition of the bank, Laflin, on the 16th day of May, 1877, authorized one Keleher, a broker, to sell in the market his 85 shares of stock. Keleher sold the same at private sale for $5,037.50 to James H. Britton, who then was, and for some years had been, the president of the bank. Mr. Britton gave Keleher to understand that he was buying either for himself or a party whose name he did not disclose. Britton paid Keleher the $5,037.50 by his individual check on the bank of which he was president, and Keleher thereupon delivered Britton the certificates assigned in blank for the 85 shares of stock, together with a blank power of attorney, indorsed thereon, signed by Laflin, authorizing the transfer of the stock on the books of the bank. The stock certificates contained this provision: "Transferable only on the books of the said bank in person. or by attorney on the return of this certifi

cate, and in conformity with the provisions of the laws of Congress and the by-laws which may be in force at the time of such transfer."

There were no by-laws on the subject of the transfer of stock. Keleher immediately presented Britton's check at the counter of the bank, and received thereon the $5,037.50, and deposited the amount in his own name with his bankers, the Messrs. Bartholow, Lewis & Co., upon whom he gave Laflin his own check for $4,995-being the proceeds of the sale to Britton less his commission of 50 cents per share. Keleher did not inform Laflin to whom he had sold the stock, and even declined to do so. Laflin did not actually know that it had been sold to Britton until some time afterward. Keleher supposed Britton was making the purchase for himself or for some other person, and did not know that he was buying it as "trustee for the bank." After Keleher had delivered the stock certificates for the 85 shares assigned in blank, with the blank power to transfer indorsed thereon, and had collected the check and had left the bank, but on the same day, Britton delivered the stock certificates, together with the blank powers of attorney signed by Laflin, to one E. Girault, the general book-keeper of the bank, with instructions to credit from the general funds of the bank, Britton's individual account with the amount paid for the stock, viz., $5,037.50, which was done, and to charge the like amount in the books of the bank to "sundry stocks" account, and to transfer the 85 shares on the stock transfer book to "James H. Britton, trustee." Girault obeyed these directions. The transfer of the stock on the transfer book was accordingly made to "James H. Britton, trustee," not stating for whom he was the trustee. But in the stock ledger the transaction was entered in an account entitled, "James H. Britton, trustee for bank," meaning Britton's own bank. Girault, in making the transfer of the shares, filled in his own name as attorney in the blank powers of attorney signed by Laflin, and signed the transfer to Britton as trustee thus, "S. H. Laflin by E. Girault, attorney." Girault had actual knowledge at the time that this stock had been paid for in the manner herein before stated. No new certificate of stock for the 85 shares were ever issued to Britton or any one else. Neither Keleher nor Laflin knew of the foregoing directions of Britton to Girault, nor what Girault did in respect thereto. Other stock to a very large amount was from time to time purchased from other persons by Brittou and paid for in the same way and transferred and entered in the same manner. No formal resolution of the dir tors appear authorizing this to be done, but directors knew of and assented to Britton's acts in this regard.

At the time of the suspension of the bank, June 20, 1877, there were, it seems, 4599 shares of its own stock standing in the name of "James H. Britton, trustee," which had been purchased by him with the funds of the bank, under circumstances more or less similar to the purchase from the defendant, Laflin.

All of the stock thus standing in the name of Britton, trustee, including that purchased from Laflin, was voted by him at the election of directors held May 29, 1877. Britton had been for years the owner of a large amount of stock in the bank in his own name and right, and thus owned 1542 shares when the bank suspended. Britton's credit was good at the time of this transaction, and there was nothing in the nature

of the transaction-in the fact of the purchase, the amount or mode of payment or the price paid-calculated to awaken suspicion on the part of Keleher, that it was not a regular transaction on Britton's own account. Laflin did not receive more than the stock was then considered to be worth in the market. Laflin did not know that the bank was insolvent and his firm continued to deposit money with it until it closed. Keleher testifies that he considered the bank "sound in all respects" when he made the sale to Britton. The bank had not at that time committed any act of insolvency.

This is a bill in equity by the receiver against Laflin & Britton to compel Laflin to pay back the $5,037.50; to set aside the transfer of the 85 shares of stock; to have Laflin declared to be still a stockholder in the said bank in respect of said shares, and to have Britton ordered to re-transfer the shares to Laflin on the book of the bank,

The bill as to Britton stands confessed. Laflin answered denying the material charges in the bill. Replication was filed and proofs taken. The cause is before the court on final hearing.

The following provisions of the national bank act, taken from the Revised Statutes, are those which more directly relate to the questions arising in this

case:

§ 5139. The capital stock of each association shall be divided into shares of $100 each, and be deemed personal property, and be transferable on the books of the association in such manner as may be prescribed in the by-laws or articles of the association. Every person becoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of such shares, and no change shall be made in the articles of association by which the rights, remedies or securities of the existing creditors of the association shall be impaired.

Again, § 5151. The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for the other, for all contracts, debts and engagements of such association to the extent of the amount of their stock therein at the par value in addition to the amount invested in such shares.

*

*

*

§ 5201. No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and stock so purchased or acquired shall within six months from the time of its purchase be sold or disposed of at public or private sale, or in default thereof a receiver may be appointed to close up the business of the association, according to section 5234.

§ 5204. No association or member thereof shall, during the time it shall continue its banking operations, withdraw, or permit to be withdrawn, either in the form of dividends or otherwise, any portion of its capital. * **But nothing in this section shall prevent the reduction of the capital stock of the association, under section 5143.

interested in such trust funds would be, if living and competent to act and hold the stock in his own

name.

§ 5210. Requires a full and correct list of all the shareholders to be kept, subject to inspection of all the shareholders and creditors, and a verified copy of such list to be sent annually to the comptroller of the currency.

Henderson & Shields, for the plaintiff.
A. W. Slayback, for the defendant, Laflin.

DILLON, Circuit Judge. The plaintiff is the receiver of the National Bank of the State of Missouri, appointed by the comptroller of the currency, June 23, 1877, the bank having suspended payment three days before. (Rev. Stats., § 5234.) The defendant, Laflin, had for some years prior to May 16, 18:7, been the holder of 85 full-paid shares in that bank. At the date of the suspension of the bank the defendant, James H. Britton, was its president, and had been such for some years prior to that event. On the 16th day of May, 1877, Laflin sold through one Keleher, a broker, the 85 shares of stock to Britton, and delivered to him the share certificates, duly assigned in blank, with powers of attorney in blank thereon indorsed, to transfer the shares on the books of the bank. Laflin's broker, who effected the sale, understood that he sold to Britton individually, or to some unknown person for whom Britton acted, and he received in payment for the shares the personal check of Mr. Britton on the bank for $5,037.50, which was immediately presented and paid. Laflin did not know until some time after the transaction who had become the purchaser of his shares. After the shares had been thus delivered and paid for by Britton's check and the money received, but on the same day, they were transferred in pursuance of Mr. Britton's directions by Mr. Girault, the book-keeper of the bank (by virtue of the powers of attorney from Laflin), to "James H. Britton, trustee," and at the same time the book-keeper credited Britton's individual account at the bank, with the amount of his check given in payment for the shares, and charged the same amount to the "sundry stocks account" on the books of the bank. On the official stock register, the shares were thus made to stand in the name of "James H. Britton, trustee," without stating for whom he was trustee. On the stock ledger of the bank the transaction was entered in an account entitled "James H. Britton, trustee for the bank." Neither Laflin's agent, who negotiated the sale of the shares, nor Laflin himself, had any actual notice of the manner in which the transfer of the stock had been registered, nor that the funds of the bank had been thus used to pay for it, nor of the entries in respect thereto on the books of the bank. But of all these facts, Mr. Girault, the bookkeeper of the bank who made the entries, and who had inserted his name in Laflin's blank power of attorney to transfer the stock, had actual knowledge at the time.

This is a bill in equity by the plaintiff as the receiver of the bank, against Laflin and Britton, to compel Laflin to repay the $5,037.50 (the amount of Britton's check for the shares paid by the bank), and to set aside the registered transfer of the 85 shares on the stock transfer books of the bank.

The case presents questions of grave moment concerning the rights of stockholders and creditors in national banking associations. And if the insolvency

of the bank here in question is such as shall make it necessary to enforce the individual liability of the shareholders (Rev. Stats., § 5151), it is important to those shareholders who made no sale of their stock, to know who are shareholders with them liable to contribute to meet "the contracts, debts and engagements of the association." These questions principally depend upon the true construction of certain provisions in the national banking act to which we shall refer as we proceed.

Inasmuch as this act in express terms prohibits a national bank from thus becoming a "purchaser of the shares of its own capital stock," (Rev. Stats., § 5201) if Laflin had made a contract to sell his shares to the bank, or to its president for the bank, it is plain that such a contract would have been extra vires, and illegal both as respects creditors and other shareholders, and the transaction could have been impeached by the bank in its corporate capacity, or by its other shareholders, even if the bank were still solvent and going on, or by the receiver as the officer appointed to wind up its affairs. Re London, etc., Exchange Bank, Law Rep., 5 Ch. App. 444, 452; Great Eastern R'y Co. v. Turner, Law Rep., 8 Ch. App. 149; Currier v. Lebanon State Co., 56 N. H. 262. And although Laflin did not contract to sell his shares directly to the bank, or to the president for the bank, still, if, before the transaction was completed as to him, he had notice, actual or constructive, that the purchase was in fact a purchase for the bank, and paid for by the money of the bank, the transaction cannot stand, and the receiver may compel him to pay back the money thus received, and have him declared still to be a shareholder.

It would be easy to support these propositions by argument and by the authority of adjudicated cases, but they are so plain that it is not necessary to do so. But Laflin, or his agent, Keleher, did not deal with the bank or with the president with knowledge that the latter in fact intended to pay for the shares out of the moneys of the bank. Laflin was acting in good faith. Neither he nor his agent, Keleher, had any actual knowledge of Britton's purpose to turn these shares over to the bank, and to pay for them out of the funds of the bank. If Laflin can be charged with notice, it must be constructive notice, arising either, first, from the mere fact that he was a shareholder in the bank, or second, from the law imputing to him all the knowledge in this behalf which was possessed at the time by Mr. Girault, the book-keeper, who made the transfer of the shares on the transfer books of the bank under Laflin's blank powers of attorney, and who contemporaneously made the entries on the private books of the bank, which showed that Britton had been paid for the shares out of the general funds of the bank, and had acknowledged that he held the shares as the trustee of the bank.

The controlling question in the case is, whether Mr. Laflin is affected with constructive notice in one or the other of these modes. The solution of this question, in its turn, depends upon the nature and extent of the right of a shareholder in a national banking association to transfer his shares, and also upon the elements or requisites of a completed transfer, by which is meant such a transfer as shall release the transferor from liability to the bank, its stockholders and creditors.

In considering these questions, our first proposition