20 FEDERAL 1zm>0R·mR.
and transferred to defendant 50 shares of the capital stock of the National
Express & Transportation Company, a corporation organized under the
laws of the state of Virginia, and that the same, at the request of the de-
fendant, and with the consent of the corporation, were, on the 17th of
February, 1866, assigned and transferred on the books of the corporation
to the defendant, who then and thereby became the owner and holder
thereof. The plaintiff sues to recover the amount of subsequent calls and
assessments upon the stock so -transferred, paid by the plaintiff in dis-
charge of the liability of the estate of said Daugherty therefor. The de-
fendant, by his answer, denied each and every of the allegations of the
petition above referred to. Upon the trial, the plaintiff offered in evi-
dence a copy of the original certificate No. 540 for 100 shares of the
capital stock of said company, issued to said Daugherty; also a copy
of a power of attorney by said Daugherty to R. Mayo, Jr., reciting that
Daugherty had bargained, sold, assigned, and transferred to A. R. Ap-
pleman 50 shares, and authorizing the transfer of the same to him.
There was also testimony that this power of attorney was pasted on the
back of said certificate No. 540, which was surrendered by Mayo, as at-
torney for Daugherty, and canceled, and that an entry of the transfer
of 50p shares to A. R. Appleman by Mayo, as attorney for Daugherty,
was made on the 16th of February, 1866, on the_company’s transfer
book; and on June 30, 1866, in treasurer’s blotter, an entry, "Rec’d
from A. R. Appleman, 5% on 50 shares of $250/’ under the head, "Cash
to 4th Assessment;" and on the stub No. 91, in a bank check book of
the company, an entry, June 30, 1866, of a deposit of three checks, one
of them being "A. R. Appleman, $250;" and a memorandum of the
mailing of certificate to Appleman. This was all the testimony offered
on behalf of the plaintiff, excepting testimony showing plaintiffs pay-
ment of calls and assessments, and that of witnesses tending to prove
that the defendant was the "A. R. Appleman " named in the power of
attorney and in the entries above referred to. No witness had any per-
sonal knowledge of any of the transactions to which the entries in the
books refer. The company, on the 20th of September, 1866, made an
_ assignment of all its property in trust for the payment of its creditors.
All question as to the competency of the evidence having been reserved
at the trial, a verdict was rendered for the plaintiff, and the case is now
before the court on motion for new trial. _
A new trial must be granted. It is necessary for the plaintiff to es-
tablish the averments of his petition denied by the answer, and this he
cannot do by showing merely that the defendant named appears upon
the books of the company as a stockholder, for it also appears that his
intestate,'Daugherty, the original stockholder, caused the transfer to be
made from himself to the defendant. It is therefore necessary that there
should be in addition proof of acceptance by the defendant of the trans-
fer. Turnbull v. Payscm, 95 U. S. 421, is clearly distinguishable from
this case. 'I`here the action was against an original stockholder, for the
benefit of creditors of the corporation; here it is by the administrator of
an original stockholder against his alleged transferee, who denies having