The plaintiffs seek to recover the possession of certain railroad securities, usually called bonds. These securities more closely resemble promissory notes payable to bearer. They are put in circulation, and pass from hand to hand by delivery, and are thus bought and sold in the stock market, no formal transfer being required; and interest is paid thereon to whomsoever demands the same, upon presentation thereof, or the coupons attached thereto.
The right of the defendant Benedict to retain these securities as against the plaintiffs must be decided upon the same principles as if they were negotiable notes made payable to bearer. Indeed this matter seems to be distinctly settled by legislative enactment. By St. 1852, c. 76, “ all bonds and other obligations under seal for the payment of money, purporting to be payable to the bearer, or some person designated or bearer, or payable to order, which have been or hereafter shall be issued by any corporation, are made negotiable, in the same manner and to the same extent as promissory notes are now negotiable.” Chapin v. Vermont & Massachusetts Railroad, 8 Gray, 494. White v. Vermont & Massachusetts Railroad, 21 How. 575.
These bonds were transferred to Benedict, as the case finds, as security for debts due from Soley to him, and for certain liabilities of Benedict as an indorser for Soley. They were all received by Benedict in Massachusetts, except one, which was delivered to him in Connecticut. They were all received by him in good faith, and without any reason for supposing any fraudulent act on the part of Soley in passing them over to *11him. But it now appears that these bonds were, when delivered to Soley by the plaintiffs, the property of the plaintiffs, and that they were entrusted by them to Soley for the purpose of procuring a loan thereon for the benefit of the plaintiffs, and for no other purpose. The inquiry is, who has the better title to these bonds ?
1. As to the place where this transfer must be deemed to have been made. None of these bonds were transferred to Benedict in the State of New York, but eight of them" were delivered to him in Massachusetts, and one in Connecticut. The transfer must be dealt with as a Massachusetts contract, under the circumstances disclosed.
Such being the case, the point urged upon us, that by the law of New York a transfer of negotiable securities, in discharge of a preexisting debt, or as collateral security therefor, is taken-subject to the equities between prior parties, if it could be considered as applicable to a case like the present in the courts of New York, can have no effect here. By the law of Massachusetts, the receiving of a negotiable note, in payment of a preexisting debt, or as collateral security for the same, excludes all the equities between the original parties thereto. Of course, it must be taken in good faith, and without notice of anything to impeach its validity as a just debt. Blanchard v. Stevens, 3 Cush. 162. Chicopee Bank v. Chapin, 8 Met. 40. Stoddard v. Kimball, 6 Cush. 469.
2. As to the right of the plaintiffs to hold the surplus of the bonds, if any, after discharging the liabilities of Soley to the defendants, we do not perceive any question raised in the report of the case. The case differs essentially from Chicopee Bank v. Chapin, 8 Met. 40, as that was a suit against the party liable to pay the note. Here the matter in issue is the right of property in these bonds. The plaintiffs have failed to establish that right upon any facts stated in the case.
3. An objection was taken to the competency of the deposition of Hillyer. This objection, we think, cannot avail the plaintiffs. The defendant Ensign has no interest in the suit, and is not affected by a decision in favor of either of the real parties. He was constituted a trustee for both parties. His brother in law, *12the magistrate who took the deposition, cannot be said therefore to be related to any party in interest in the present suit.
Judgment for the defendants.