I do not concur in the reversal of this judgment, as I do not think that the evidence required a finding that the stock of the Union Pacific Railroad Company which was held as collateral security by the Importers and Traders’ Bank was the plaintiff’s stock. The question presented is between the plaintiff and the trustee in bankruptcy of Hatch & Foote as to who> was entitled to this stock. Neither of the other defendants had any interest in the determination of that question. To entitle the plaintiff to succeed upon this issue as against the trustee in bankruptcy, he must prove by evidence competent as against the trustee that the' stock held by the defendant bank was his stock. I do not think that the declaration of one of the bankrupts, made after the adjudication and after the title to the bankrupts’ estate had vested in the trustee, was competent evidence as against the trustee. The bankrupts being parties to the action, their declarations might have been competent evidence as against them, and so admissible; but when the question came to, be determined as to whether or not this stock was the plaintiff’s as against the trustee,'the court was not justified in accepting the declarations of the bankrupts after the adjudication in bankruptcy • to prove the fact as against the trustee, and the statement of counsel for the McGays that they claimed no interest in the stock, would have, as I look at it, no possible bearing upon the ques^ tion Whether the plaintiff had proved as against the trustee in bankruptcy that the stock in question was the plaintiff’s stock. This-stock stood in the name of the bankrupts, upon its face was the property of the bankrupts, and the title to it passed to their trustees *35in bankruptcy. The trustees represented the' creditors of the bankrupts and were entitled to all of the bankrupts’ property for distribution among them. If, as the plaintiff claims, this 100 shares of the stock held by the defendant bank was his identical stock, he could have had no difficulty in proving that fact by showing that the 100 shares of stock that he had delivered to the bankrupts had been transferred upon the books of the company to the bankrupts and was represented by the particular certificate of stock that was held by the bank. It may be true that he had delivered 100 shares of stock to the bankrupts and the bankrupts had deposited 100 shares of the stock with the bank; but as it was also proved that the bankrupts held other shares of the stock I think there was no competent evidence to prove that this stock in question ivas plaintiff’s stock, and for that reason the court below was right in refusing to award him the stock. But assuming that there was some evidence of that fact, still a question of fact was presented for the trial court to determine, and it certainly cannot be said that this unsworn declaration of one of the bankrupts, after he had lost all interest in the question, was sufficient to compel the court to find as a fact that this stock belonged to the plaintiff. The court having the question before it has decided that the evidence was not sufficient to sustain a finding of the plaintiff’s ownership of the stock, and I agree with the court below that the evidence was not sufficient. Certainly it was not so clear and convincing as to justify us in reversing the finding as against the weight of evidence.
Judgment reversed, new trial ordered, costs to appellant to abide event.