TRIPP o. APPLEMAN. 21
made purchase of the stock, or authorized the transfer; and it is sought
to establishthe liability of the transferrer by the record of the company
of a transfer made under a power of attorney given by the transferrer, and
executed at his instance, so far as the testimony indicates, without the
knowledge or consent of the transferee. In such case, in which the
company is not interested, nor are its creditors,something more than the
company’s record of transfer is necessary. The extreme improbability
that the name of an individual would apppear on the stock-books of a
corporation as a stockholder to whom a certincate had been issued, is
sufiicient warrant for the legal presumption casting upon him the burden
of proving that he is not a stockholder; but that case is essentially differ-
ent from one in which it appears that a stockholder has by his own act
caused a transfer of stock, on the books of the corporation to a third per-
son, who denies that he requested or authorized or accepted such trans-
fer. The reason for the distinction is clear when it appears, as it does
from the petition in this case, that the corporation, not long after the
transfer, made a general assignment in favor of its creditors; for, when a
corporation is in straightened circumstances, or in danger of insolvency,
stockholders sometimes make haste to disposeof their stock, and the rule
recognized in Turnbull v. Payson does not apply.
The question remains whether the additional evidence offered makes
out the case against the defendant, conceding that "A. R. Appleman,"
as the name appears in the power of attorney and in the books of the
corporation, sufnciently designates the defendant. The answer must be
in the negative. Memoranda on the margin of a bank check book, show-
ing the date and tenor of the checks drawn and out from the books, are
inadmissible. Cooper v. Morrel, 4 Yates, 341; Wilson v. Goodin, Wright,
219; Wats v. Shewell, 31 Ohio St. 331. This last case is directly in point
as to entry on stub of check No. 91, referred to in statement of the evi-
dence. Nor is the entry of $250.·credited to A. R. Appleman, admis-
sible. It must _be considered apart from the evidence that the books
show the issuance of a certificate to him; for that evidence, as we have
seen, does not establish that he was a stockholder. He must therefore,
in disposing of the competency of the entry on the treasurer’s book, be
regarded as a stranger to the corporation, and as against strangers the
books of a corporation are not admissible. 1 Whart. Ev. § 662; It will
hardly do, therefore, toconclude that, although the certificate of transfer
is not evidence sufficient to establish that the defendant was a stock-
holder, and the entry on the treasurer’s book is not admissible against
him as a stranger, each may be used in aid of the other, and thus the
objections to both be overcome.
Finally, it cannot be maintained that under the laws of subrogation
the plaintiff has all the rights of the company against the defendant.
That proposition applies in favor of a plaintiff only when he succeeds
in establishing the relation of stockholder on the part of the defendant
to the company, and this the plaintiff has not done. I
The verdict ofthejury will be set aside and a new trial granted.
\