Opinion of the Court, per Danforth, J.

bility was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to the plaintiff in his person, property or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either "the homicide or suicide were the natural, reasonable, or probable consequences of the defendants' act." It is enough if while intoxicated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff's means of support were affected to his injury.

Nor was it error in the learned trial judge to submit the case to the jury as one in which the plaintiff might have exemplary damages. They are expressly allowed by statute, and there was evidence upon which they might be awarded. The defendants were manufacturers of lager beer. They had no license to sell it in quantities of less than five gallons. The sale to the plaintiff's father was of that description, and hence unlawful. It was not an isolated sale. The defendants had so dealt for a long time and with many persons. It resulted in their pecuniary benefit. Under the circumstances of the case it was, therefore, for the jury to say whether something more than actual damages should not be allowed for the benefit of the community and for example's sake. To hold otherwise would place a wrong-doer (Foote v. People, 56 N. Y. 321) on the same footing with a licensed vender one who sells recklessly and at his own volition, on a level with one who has the consent of the proper public officers to deal in an article, the use of which, as the statute (supra) implies, leads to "intemperance, pauperism and crime.”

Other points presented by the learned counsel for the appellants have been considered, but we find no error. In this conclusion we agree with the General Term, and therefore their judgment should be affirmed.

All concur.
Judgment affirmed.

Statement of case.

WILLIAM H. ROBINSON, Respondent, v. THE NATIONAL BANK
OF NEW BERNE, Appellant.

A provision in the statute under which a corporation is organized, or in
its by-laws, requiring transfers of its stock to be made upon its books, is
for its benefit; and where the owner of stock has assigned and trans-
ferred, for a valuable consideration, the certificate issued to him, and the
corporation, when requested to make the transfer, without a valid reason
refuses so to do, this amounts to a waiver of the requirements; the
transfer is complete and the corporation is bound to recognize the title
of the assignee, precisely the same as if it had done its duty and made
the proper entries upon its books.

S. being the owner of sixty-one shares of defendant's stock, which stood
in his name upon its books, for a valid consideration sold the stock and
assigned the certificates to H., who presented them, with the assignment,
to defendant, and demanded a transfer to himself upon its books; this
was refused. H. thereafter sold and assigned the certificates to plaintiff.
In an action to recover dividends declared upon the stock, it appeared
that, after notice of the transfer to H., defendant caused the stock to be
seized and sold under an attachment issued in an action brought by it
against S. Held, that assuming the purchaser could be deemed a bona
fide purchaser, as to which quære, it did not affect the rights of plaintiff
as against defendant; that it could not set up its own wrongful act to
defeat his title; and that he was entitled to recover.
Also held, that a demand of payment, or of a transfer of the stock to plaint-
iff before suit brought, was not necessary; that having refused to trans-
fer to H., denied his ownership and caused the stock to be sold as the
property of S., no further request or demand was necessary on his part,
or that of his transferee who succeeded to his rights.

Also held, that plaintiff's right to maintain the action was not affected by the fact that he could bring an equitable action to compel a transfer or an action at law to recover damages for the wrongful acts of defendant.

(Argued April 16, 1884; decided April 29, 1884.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.

This action was brought against defendant, a corporation organized under the National Banking Act, to recover certain

95 637

132 256

Statement of case.

dividends alleged to have been declared and unpaid upon sixtyone shares of its stock owned by plaintiff.

Plaintiff claimed as assignee of said stock.

The National Banking Act provides (U. S. R. S., § 5193), that the capital stock of a corporation organized under it shall be "transferable on the books of the association in such manner as may be prescribed in the by-laws or articles of association."

Defendant's by-laws contain this provision: "The stock of this bank shall be assignable only on the books of this bank subject to the restrictions and provisions of the act, and a transfer book shall be kept in which all assignments and transfers of stock shall be made.”

The further material facts are stated in the opinion.

A. R. Dyett for appellant. Plaintiff was not entitled to dividends declared prior to the assignment. (Hogan v. Un. Nat. Bk., 63 Me. 509; Thompson's Nat. Bk. Cases, 523; Currie v. White, 45 N. Y. 822; Hill v. Newtchawenk, 8 Hun, 459; 71 N. Y. 593; Boardman v. L. S. & M. S. R. Co., 84 id. 157; 57 id. 196, 200, 201.) When a demand is made for too much, and the defendant refuses to comply on some other and distinct ground, the demand is good. (66 N. Y. 351; 71 id. 353; 2 Abb. N. C., A. D. 517.) A demand of the

dividends was necessary before suit brought. (Hogan v. Union Nat. B., 63 Me. 509; Scott v. Cent. R. R. Co., 52 Barb. 45-69.) A demand was necessary even if defendant would not have probably complied with a proper demand, but contested the plaintiff's right to the dividend on the trial. (Southwick v. First Nat. Bk., 84 N. Y. 432.) The demand made by his assignor, Hope, in July, 1869, to have the sixty-one shares of stock transferred to him, Hope, on the defendant's books, did not inure to the plaintiff's benefit. (Southwick v. First Nat. Bk., 84 N. Y. 432; Ingalls v. Rathbun, 7 Wend. 320.) No conversion could be predicated of the money dividends. (Carr v. Thompson, 87 N. Y. 160; Butterworth v. Gould, 41 id. 450; Patrick v. Metcalfe, 37 id. 332; Hathaway v. Town of Homer, 54 id. 655; Decker v. Saltzman, 59 id. 275; Rowe

Statement of case.

v. Bk. of Auburn, 51 id. 674.) The referee erred in not deciding that the plaintiff, as assignee of the certificate only, without any transfer of the sixty-one shares on the books of the defendant, could not recover the dividends in question, (U. S. R. S., § 5139; Shelton v. Howland, 53 N. Y. 372, 376; Cutting v. Damuel, 23 Hun, 339; Bk. v. Case, 96 U. S. 628; Browne's Nat. Bk. Cases, 146; Kortright v. Com. Bk., 20 Wend. 91; 22 id. 348; Johnson v. Laflin, 17 Alb. L. J. 146; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 80, 81; Johnson v. Underhill, 52 id. 209; Stebbins v. Phoenix F. Ins. Co., 3 Paige, 350, 361; Laws of 1823, p. 114; Schuyler Case, 34 N. Y. SO; McNeil v. Tenth Nat. Bk., 46 id. 332; Holbrook v. N. J. Zinc Co., 57 id. 616; Iughes v. Vermont, etc., 72 id. 207, 210; Leggett v. Bk. Sing Sing, 24 id. 293; Pollock v. Nat. Bk., 7 id. 274.) The jurisdiction of the North Carolina court of the person and subject-matter and to issue the attachments under the judgments and award the execution, etc., is presumed. (8 Cow. 311, 314; 26 N. Y. 146, 151; 53 id. 597, 599; 42 id. 26, 30, 31; 65 id. 179, 183; N. Y. & N. H. R. R. Co. v. Schuyler, 34 id. 80, 81.) The provision. for surrender of certificate on transfer does not, in any event, apply to a judicial sale of the stock in invitum. (5 Johns. 278; 7 id. 531; 3 Abb. Ct. of App. Dec. 296; Williams v. M. Bk., 5 Blatchf. 59; Oxford v. Bunnel, 6 Conn.; Cushman v. Thayer, M. & Co., 7 Daly, 380; 76 N. Y. 365; Kortright v. Com. Bk., 20 Wend. 91; 22 id. 348; Johnson v. Laflin, 17 Alb. L. J. 146; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 81, 82; Pollock v. Nat. Bk., 7 id. 274; Burrall v. Bush. R. R. Co., 75 id. 219.) A purchaser for value of stock standing in the name of the defendant on the books of a corporation, at a sale under an attachment and execution against the defendant, without notice of any prior transfer of the stock by him, obtains a title thereto superior to that of a prior purchaser of the same stock for value in good faith by a transfer thereof from the defendant not entered upon the books of the corporation. (71 Mass. 373, 380; 78 id. 213; 3 Allen, 342; 42 N. H. 424, 456; 49 Mc. 315, 318; 91 Ill. 456, 465,

Statement of case.

467; 21 Vt. 353, 362; 5 Cal. 186; 20 id. 529; 29 Conn. 245, 253; 13 id. 493, 498; 3 id. 544, 547-549; 5 Blatchf. 59; 20 Alb. L. J. 123; 71 Mass. 380; McNeil v. Tenth Nat. Bk., 46 N. Y. 323, 334, 336.) The Bank of Raleigh was guilty of no negligence in not asking for the surrender or production of the certificate issued to John Satterlee, because the sale was not by Satterlee personally, but in invitum, by the sheriff, under an attachment and execution against him, and he besides was a non-resident. (Mc Williams v. Mason, 31 N. Y. 294, 298, 299; 12 Hun, 97, 104, 105; Moore v. Metropolitan Bk., 55 N. Y. 41; Bush v. Lathrop, 22 id. 535; M. Bk. v. N. Y. & N. H. R. R. Co., 13 id. 622, 623; N. H. R. R. Case, 34 id. 30, 80; Stebbins v. Phenix F. Ins. Co., 3 Paige, 350; Union Bk. v. Laird, 2 Wheat. 390; Angell on Corp. [3d ed.] 352353; Bk. of Utica v. Smalley, 2 Cow. 770; Gilbert v. Manchester Iron Co., 11 Wend. 627; Borgate v. Shortridge, 31 Eng. L. & Eq. 58; Wilson v. Little, 3 Comst. 447.) A stockholder transferring his stock, and delivering the certificate to another without a transfer on the books, remains the nominal owner until such a transfer is made, and holds the stock as trustee for his vendee. (52 N. Y. 203, 210, 211.)

T. C. Cronin for respondent. Hope was a purchaser of the stock in good faith, and the delivery of the certificate thereof, issued by the defendants to Satterlee, were valid and effectual to transfer to and vest in Hope the equitable title to the sixtyone shares. (McNiel v. Tenth Nat. Bk., 46 N. Y. 331; Leith v. Wells, 48 id. 592; Smith v. Am. Coul Co., 7 Lans. 31; Coman v. G. F. O. Co., 3 Daly, 218.) At the time of Hope's demand of the defendant, that the stock be transferred to him. upon its books, it had no lien upon, or claim to the stock, and cannot take advantage of its own wrong by selling and transferring the stock afterward. (Conklin v. Nat. Bk. Oswego, 45 N. Y. 656; Bk. of South Bend v. Lanier, 11 Wall. 369; Evansville Nat. Bk. v. M. Nat. Bk., 2 Bliss. 527.) At the time that Hope made the demand, he had the right to have the stock trans