delivered the following separate opinion, dissenting in part, in which Bartol, C. J., concurred:
In this case I much regret being compelled to dissent from the opinion of the majority of the Court, not as to the propriety of reversing the judgment appealed from, for in that result I agree, but as to the principles upon which the reversal proceeds.
*94The action is founded upon the alleged wrong of the defendant in repudiating certain stock certificates held by the plaintiff as being spurious and void, which, as the plaintiff alleges and contends, are either genuine or were issued under circumstances to render the defendant responsible for them.
At the trial below, several exceptions were taken by the plaintiff, some to rulings upon questions of evidence, and the sixth and last exception to rulings upon the prayers offered by the respective parties for instructions to the jury.
The only question of evidence in regard to which I differ from the majority of the Court, is that presented by the fourth exception.
Upon the question whether the signatures of Yan Winkle, the president of the defendant, to the stock certificates, in respect of which the suit was brought, were genuine or forged, several witnesses had testified, some the one way, and some the other, and in that state of the proof the defendant produced a witness by the name of Paine, an expert in matter of hand-writing, by whom it was proposed to prove that he was familiar with the hand-writing in question, and that from his knowledge of it he believed the signatures not to be genuine. The witness being interrogated as to his knowledge of Yan Winkle’s hand-writing, stated that he had never seen him write, nor received letters from him, nor in the course of business had he become acquainted with it, but stated that his only knowledge on the subject was derived from an examination of the signatures of Yan Winkle in the two certificate books in evidence, which had been placed in his hands by the defendant’s counsel, for the purpose of enabling him to testify in the cause, and that he had carefully examined them for five or six months, and had thus acquired a knowledge of the handwriting of the party. Upon objection by the plaintiff to the *95competency of tbis witness for want of knowledge of the hand-writing, the Court ruled him to be competent, and allowed him to give his opinion to the jury from knowledge thus acquired', that the signatures to the certificates in question were not the genuine signatures of Yan Winkle. It was to this ruling that the fourth exception was taken.
it is thought that this ruling of the Court below was erroneous, because the witness was without competent knowledge to enable him to testify, and that to allow him to give his opinion or declare bis belief as to the genuineness of the signatures, under the circumstances, was nothing more nor less than allowing a comparison of hand-writing on sepaiate papers, as medium of proof, which, by the law of tbis State, it is supposed, is forbidden. In this position, however, I do not agree. In the first place, I am of opinion that the witness had competent knowledge to enable him to declare his belief in regard to the genuineness of the hand-writing, and, in the second place, being an expert, and all the papers about which be was called to speak being in evidence, and there being no question or controversy in regard to the genuineness of the signatures in the certificate books, I am further of opinion that he was competent to testify, from a comparison of the signatures.
1. Now, according to the books, there are two modes of acquiring knowledge of the band-writing of a party, either of which is universally admitted, to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write, though but once, and then only to sign his name, or even his surname; and the second is, from having seen letters or other documents, purporting to be the hand-writing of the party, and having afterwards communicated with the writer respecting them, or where they have been acted on, or adopted in the course of business by the party, so as to induce a *96reasonable presumption of their being genuine. 1 Greenl. Ev., see. 577.
Taking this latter mode as the test in the case, suppose the signatures in the certificate-book had been seen by the witness in any business transaction, or in any other way not connected with this cause, and afterwards the signatures had been fully recognized and acted upon by the writer, to the knowledge of the witness, could there be any question, in such case, but that the witness would be competent to testify as possessing knowledge of the party’s hand-writing? I apprehend not. And if that be so, why and in what material respect does the case, as actually presented, differ from the case just supposed? The means of obtaining knowledge is substantially the same in both cases, and the knowledge acquired is not different in character or degree. The witness has not been assured as to the genuineness of the signatures in the books, by any act or declaration of Yan Winkle, it is true; but he has been assured, in that respect, by what is in every way equivalent to the most solemn recognition of which the writer could be capable ; and that is, the concession by the party against whom the evidence is offered that the writings from which knowledge is derived are genuine. The knowledge moreover has not been acquired by casually seeing the party sign his name once at some remote period, but it has been derived from deliberate inspection and scrutiny of various signatures, conceded to be genuine, to like instruments to those in dispute. And if, as was said by this Court in the case of Smith vs. Walton, 8 Gill, 83, repeating an observation of Mr. Justice Williams, in the case of Doe vs. Suckermore, 5 Adol. & El., 703, “proof of handwriting, from the highest degree of certainty, carrying with it perfect assurance and conviction to the lowest degree of probability, may be and is constantly submitted to the jury,’’ it is difficult to perceive upon what reason *97or principle the evidence in this case should have been rejected. As was said in the same case, knowledge derived from continued and habitual inspection or correspondence, or both, carried on till the trial itself, down to a single instance, or knowledge twenty years old, may be received. That the knowledge of the hand-writing in this case had been acquired but recently before trial, and during the pendency of the cause, ought not, surely, to be taken as a valid objection to the reception of the evidence. Take the case, by way of illustration, put by Mr. Justice Wiillams in the case of Doe vs. Suckermore: “Suppose a person to have seen another sign or write a paper, or to have received one or more letters from him, but, from length of time, his .general recollection was become so faint and indistinct that he should be unable to form an opinion, might he not,” asked the learned Judge, “peruse and study those authentic documents, if in his possession, to improve and refresh his knowledge before he was called upon to give evidence respecting the writing of that person, hy whom such paper or letters, as above supposed, were confessedly written? I apprehend he certainly might. Up to the extent of these observations,” he continues, “if not beyond them, the very point has been decided in the case of Burr vs. Harper, Holt, N. P., 420. In truth the reference was made, in that case, not to revive and refresh, but to gain knowledge. And would such perusal be admissible if made a week or a month before the trial, but not so if made an hour before the witness went into Court to give his opinion upon the particular writing in question?” I think, therefore, no such distinction can or ought to be made; and if the witness can inspect a writing admitted to be genuine for the purpose of reviving and refreshing an insufficient or worn out impression in his mind, as ha doubtlessly can, (8 Gill, 85,) it is altogether beyond my comprehension why he cannot be allowed to examine ’ *98the same genuine paper for the purpose of acquiring original knowledge of the party’s hand-writing.
It is for these reasons that I am of opinion that the witness possessed competent knowledge to enable him to testify with respect to the signatures in dispute.
2. Then, as to the competency of the witness to testify simply as an expert, Mr. Greenleaf, in his work on Evidence, sec. 578, says, that the rule, requiring personal knowledge on the part of the witness, has been relaxed in two cases:
1. Where writings are of such antiquity, that living witnesses cannot be had, and yet are not so old as to prove themselves. Here the course is to produce other documents, either admitted to be genuine or proved to have been respected and treated and acted upon as such by all parties ; and to call experts to compare them, and to testify their opinion concerning the genuineness of the instrument in question. For this are cited several authorities both English and American.
2. Where other writings, admitted to be genuine, are already in the case. Here, says the author, the comparison may be made by the jury, with or without the aid of experts.- And this Court, in the case of Williams vs. Drexel, 14 Md., 566, decided that where a paper, which is admitted or clearly proved to be genuine, is already in the cause, and another paper, pertinent to the issue, alleged to be in the same hand-writing, is offered in evidence, the jury may compare the latter with the former; and the section of Greenl. Ev., to which I have referred, was cited and relied on by the Court. The question whether an expert would have been allowed to give testimony in that case, as an aid to the jury, was not presented; but nothing was said or intimated against the admissibility of such testimony in a proper case. And cases are not wanting in which experts have been allowed to testify, whether the writing in question was in a real or a *99feigned band, and to compare it with other writings already in evidence, as in this case. As instances of this, see the cases of Revett vs. Braham, 4 T. Rep., 497; Hammond’s Case, 2 Greenl., 33; Moody vs. Rowell, 17 Pick., 490; Lyon vs. Lymam, 9 Conn., 55.
Mr. Phillips, 2 vol., Ev., 254, referring to the rule upon this subject, says: “The evidence of a witness, who, from habit and practice, has acquired experience and skill in judging of the genuineness of hand-writing, and who states his belief that a particular writing is in an imitative style and forged, appears to be strictly admissible, although he is not acquainted with the handwriting supposed to be imitated.” This character of evidence was admitted in the case of Doe vs. Suckermore, 2 Nev. & P., 16; 2 Phil. Ev., 261.
It must be borne in mind that this is not the case like Doe vs. Suckermore, 5 Adol. & El., 703, (in which the Judges were equally divided in opinion on the admissibility of the evidence,) where papers, irrelevant to the record, are attempted to be introduced for the sole purpose of creating a standard of comparison ; but is the case, where all the papers to which the witness refers, are properly in evidence for other purposes. Hence, the objections generally urged against the comparison of hand-writing, as medium of proof, that it may give rise to fraud in the selection of the writings as specimens to be used, and to collateral issues as to the genuineness of the specimens produced, cannot apply.
I am therefore of opinion that it was proper that the witness should have been allowed to testify as an expert in respect to the signatures in evidence before the jury.
Having thus disposed of the question of evidence, I come now to consider the law arising upon such of the prayers acted upon by the Court below, as have been made ground of exception by the plaintiff. And as these prayers all have reference to the acts and conduct, and *100extent of authority of Orawford, the treasurer and transfer agent of the defendant, it is well, before referring particularly to the prayers, to ascertain what express authority was delegated to this agent by the defendant.
Orawford was duly appointed treasurer of the defendant, and which office he held at the pleasure of the board of directors. By the by-laws of the defendant, it was declared that iC the duty of the treasurer, in addition to the usual functions of such an officer, shall be to keep the ledger and other books, relating exclusively to the ownership and transfer of the capital stock of the company, to prepare and countersign all certificates of ownership of stock and scrip hereafter issued, and to receive and enter upon the proper book, all transfers thereof. He shall affix an impression of the seal of the company to all certificates of ownership of stock and scrip properly issued by the company, and signed by the president, and also to such other instruments and papers as are required by law, or the by-laws of the company, or may be directed by the board to be under seal.” He was required by the same by-law to give bond., and until further directed, to keep his office in the city of Baltimore. This by-law was in force during the period that Orawford held the office of treasurer and transfer agent of the company.
The fact that the plaintiff is a bona fide holder for value of the certificates of stock in question, and that he had no reason to suspect, at the time he received them, that they were fraudulently or improperly issued, is not controverted ; but the real question is, to what extent is the company liable in respect of these certificates, for the fraudulent acts of its transfer agent.
The several prayers on the part of the plaintiff, to the refusal of which exception was taken, present the right to recover on two distinct grounds:
1st. On the hypothesis that the several certificates of stock had been signed by the president, Van Winkle, *101and that they were in all respects in the usual form of genuine stock certificates, and that they were issued by the transfer agent at his office, while engaged in the business of his employment ; and,
2ndly. That, assuming or conceding the signatures of the president, Yan Winkle, to the certificates of stock not to be genuine, inasmuch as the certificates were issued from the company’s office, by its regular officer, in the usual form, without notice of any defect or irregularity therein by the plaintiff, the circumstances under which the certificates were issued preclude and estop the defendant from availing itself of the fraud of the transfer agent, and the want of the genuine signatures of the president to the certificates, as a defence to the action.
Under the first of these propositions are embraced the first and seventh prayers of the plaintiff, and under the second, are embraced the second, third, fourth and sixth prayers.
Those of the defendant’s prayers which were granted by the Court, will be disposed of in the result of the legal propositions involved in the prayers of the plaintiff.
1. And first, as to the first and seventh prayers of the plaintiff. These prayers maintain, that if the signatures of the president to the certificates be genuine, the fraud of the transfer agent in issuing the certificates for his own purpose, and not that of the company, under the facts stated, the plaintiff being innocent, does not affect the right of the latter to recover. And of this I think there should be no question.
The general doctrine is too well established to be questioned, that the principal is liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances, or misfeasances, and omissions of duty of his agent, in the course of his employment, although the principal did *102not authorize or justify, or participate in, or know of such misconduct, or even if he forbade the acts, or disapproved of them. Sto. Ag., sec. 152, and the authorities cited. And it is equally well settled that corporations are liable .for the acts and conduct of their agents, while engaged in the business of their employment, in the same manner and to the same extent that individuals are liable, under like circumstances. Ranger vs. The Great West Railroad Co., 5 Ho. L. Cas., 86; Merchants’ Bank vs. State Bank, 10 Wall., 604.
The question of liability here, however, raised on these prayers, involving the fraud of the agent, depends, not upon the actual authority, but upon the apparent authority, of the agent, in the exercise of his employment. The rule upon this subject is stated by Lord Ellen-borough, in Pickering vs. Busk, 14 East, 43, as clearly, and, at the same time, as broadly as can be found in any of the authorities. He there lays it down as clear law, that strangers can only be required to look to the acts of the parties, and to the external indicia of property, and not to the private communications which may pass between a principal and his agent; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. That the agent may bind his principal within the limits of the authority with which he has been apparently clothed in respect to the subject-matter; for otherwise there would be no safety in mercantile transactions in which agents are employed. The same doctrine, though stated in somewhat different terms, has been declared by this Court, in the case of Lister and Supplee vs. Allen, 31 Md., 543.
Now, such being the law, if it be true that the certificates of stock were signed by the president, and were, in all other respects, regular on their face, and were *103issued by the transfer agent at the company’s office, in the apparent exercise of his employment, and the plaintiff became the bond fide possessor of them, under the circumstances stated in the prayers, why should the company not be responsible? It claims to be exonerated upon the ground that, the agent transcended his authority in issuing the stock, and because he used it for his own purposes, and thus perpetrated a fraud upon the company. But if there was apparent authority, the fact that the agent used the stock for his own purposes, and thus committed a fraud, will not justify the company in repudiating the stock as spurious, and by that means throw the loss occasioned by the fraud of their agent upon an innocent third party. These certificates having all the indicia of genuineness, and coming from the proper office and officer to furnish them, third parties accepting them were not bound to enquire as to the circumstances under which they had been signed by the president, or in what manner or for what purpose they had been left with the transfer agent. It was enough, so far as bond fide third parties were concerned, that the certificates were issued by an officer with apparent authority in the premises. That this transfer agent had such authority is manifest. By the by-law, before referred to, he was clothed with express authority, and it was made his duty to keep the books relating to the ownership and transfer of the capital stock of the company; to prepare and countersign all certificates of ownership of stock and scrip that might be issued, and to receive and enter upon the proper books all transfers thereof. It was made his duty, moreover, to affix the seal of the company to all certificates of stock. With these powers and duties, pertaining to the issuing of certificates and transfer of stock, what could third parties or the public conclude in reference to the want of authority in the agent, in the absence of some admonition of the circumstances under *104which the certificates were signed by the president and left in the custody of the transfer agent ? Every person dealing in the usual and ordinary course, had a right to presume that the certificates signed by the president were properly in the custody of the transfer agent, and that they were intended to be used as the agent did use them. The piublic could deal upon no other presumption. The certificates were genuine, according to the assumption of these prayers, and such as were issued in the most regular transaction; but the fraud of the agent consisted in the improper and illegal purpose for which they were issued. The consequences of this fraud should be borne by the company, employing and entrusting the agent, rather than an innocent third party, dealing upon the faith of appearances that the company must be taken to have allowed to exist. Such would seem to be the result of all the authorities upon the subject.
The case of Adams Express Co. vs. Trego, 35 Md., 47, was much relied on by the defendant’s counsel ás maintaining principles that would exonerate the defendant from liability for the acts of its agent, under the circumstances of this case; but that case is quite distinguishable from this. There the main question was, whether the act of the superintendent was within the limit and scope of his authority; and this Court, under the particular facts of the case, decided that it was not, and that the Express Company was not bound therefor.
It follows, from what I have said, that I am of opinion that there was error committed by the Court below in refusing to grant the first and seventh prayers of the plaintiff; and for the same reasons that I think these prayers should have been granted, I am of opinion that the first, second, third and seventh prayers of the defendant should have been refused. The fact relied on in thg second and third of the defendant’s prayers, that the certificates of stock were pledged to the plaintiff1 as col*105lateral security for the loan of money to a broker for the benefit of the fraudulent agent, can make no difference if the plaintiff acted bona fide in loaning his money on the faith of the certificates. For the principle would seem to be well settled, that, in the case of a pledge of certificates of stock, which pass by delivery, or where they are issued in, or transferred to, the name of the pledgee, if the pledgor has been, by the act or conduct of the real owner, clothed with the apparent title to, or seeming rightful control over the stock, without the disclosure of any circumstances to indicate the want of authority to dispose of it, the pledgee, if a bond jide holder without notice, may hold the stock against the claim of the real owner. Lowry vs. Com. & Farmers’ Bank, Campb. C. C. Rep., 310; Jarvis vs. Rogers, 13 Mass., 105; Wilson vs. Little, 2 Comst., 443; The Queen vs. The Shropshire Union Co., Law Rep., 8 Q. B., 420, in Exch. Chamber; Sto. on Bailm., sec. 322. And this case clearly comes within the principle; for the plaintiff, if acting bond fide, had a right to conclude that the ownership of the stock was either in the broker or the party for whom the money was loaned.
2. I come now to the second, third, fourth and sixth prayers of the plaintiff, and they present questions quite different from those just considered.
These prayers proceed upon the theory of the defendant’s liability, notwithstanding the president’s signatures to the several certificates of stock were not genuine, or had been forged by the transfer agent. Under the second and third prayers it is insisted that, as the certificates have all the other indicia-of genuineness, and were issued from the company’s office, and by its agent, apparently in the exorcise of his employment, and who was entrusted with the regular blanks, and with the seal of the corporation, the defendant is estopped by the acts and conduct of the agent; and, under the fourth and sixth *106prayers, in connection with, and addition to, the facts enumerated in the preceding second and third prayers, the negligence on the part of the directors of the company, in not supervising and investigating the affairs of the office and conduct of the transfer agent, is relied on as ground of estoppel to the defendant from showing the certificates not to be valid for want of the genuine signatures of the president.
Now, assuming throughout that the issuing of the several certificates were not corporate acts, and were not in any manner assented to by those capable of binding the corporation, the question is, are the facts enumerated in these prayers of the plaintiff of a character and sufficient to operate an estoppel in pans f for if not, the general principle is applicable, that no title can be acquired by or through the means of a forgery.
That the certificates were not valid without the signature of the president, has not been and could not be denied. Indeed, by invoking the doctrine of estoppel the invalidity of the certificates is conceded ; for an estoppel in pais presupposes an error or a fault, and implies ah act in itself invalid. It proceeds upon the principle that the author of the misfortune shall not himself escape the consequences and cast the burden upon another more innocent than himself. 10 Wall., 645.
On these prayers the first question is, what acts or representations of the transfer agent will bind the company by way of an estoppel? Judge Story states it as unquestionable law, “that no representations, declarations or admissions of an agent will bind his principal, except in cases loithin the scope of the authority confided to him.” Sto. Ag., sec. 134. This authority, it is true, may be by express delegation, or by implication, arising from the appearance of things recognized, or allowed to exist with the knowledge of the principal.
Here it is insisted, notwithstanding the signature of the president to the certificates of stock may not be gen-*107nine, but be forged, that under the circumstances stated, the defendant is bound, by the representation of tire validity and genuineness of the certificates of stock, made by the act of its transfer agent, and is, therefore, estopped from denying the validity and genuineness thereof. In this proposition is asserted the principle that, although the certificates were invalid without the genuine signature of the president, yet all the purposes of that signature, as means of authentication, could be supplied, and the company bound, by the simple false representation of the transfer agent, by the act of issuing the certificates of stock from the regular office of the company under its seal, that the certificates were proper corporate acts, and had been duly signed by the president, according to their purport.
Now it must be borne in mind, that the office and agency of the president is quite distinct from that of the treasurer and transfer agent; and that the latter has no power or authority to exercise the functions of the former. The object of requiring both of these agents to officiate in issuing and authenticating certificates of stock, was to establish checks to operate as a protection, not only to the company but to the public. The- certificates themselves purport on their face to be issued by the separate and distinct acts of the two agents ; and it is conceded that they should so purport to give them validity. How then can the one agent by act or false representation supply or dispense with the office of the other? His acts and representations made in this respect are clearly not within the scope of his own authority, but within that delegated to another; and as the validity of the certificates required the exercise of the functions of the two agents, the representations of the one, whether by word or act, with respect to the exercise of the separate power or authority of the other, not being within (but extrinsic,) the authority cqnfided to him, do not bind the principal. Any *108other doctrine would go far to destroy and render nugatory all checks that corporations may have devised for the protection of their stock. For if "the representation of the transfer agent in respect to the signature of the president, is to conclude the corporation, then his representations as to the genuineness of the seal, and every other act of authentication, although they may all, in the particular instance, be false and counterfeit, must equally conclude; and hence, while corporations are bound to act through such agencies, they may be unable, by any checks or precautions that they can adopt, to protect their stockholders against the forgeries and counterfeits of their agents. To such an extent, I am sure, no well considered case has yet gone.
The well established doctrine, that the representations of-the agent do not bind the principal, unless made within the scope of his authority, finds apt illustration in decided cases.
In the case of Grant vs. Norway, 2 Eng. L. and Eq. Rep., 337, it was held that the master of a ship, though a general agent, to perform all things relating to the usual employment of the ship, had no authority as such, to sign a bill of lading for goods which were not put on board the vessel; and consequently the owners of the ship were not responsible to innocent third parties, who had advanced money and incurred liability on the faith of a bill of lading which had been signed by the master without receiving the goods on board. In the course of the opinion of the Court, delivered by Chief Justice Jarvis, he said: “The master is a general agent to perform all things relating to the usual employment of his ship, and his authority as such agent to perform all such things as are necessary in the line of business in which he is employed, cannot be limited by any private orders not known to the party in any way dealing with him. This general proposition is laid down by Mr. Srpith in *109his Mercantile Law, p. 559. Is it then, usual, in the management of a ship carrying goods on freight, for the master to give a hill of lading for goods not put on board ? All parties concerned have a right to assume that the agent has authority to do all that is necessary, but the very nature of the bill of lading shows that it ought not to be signed till the goods are on board, for it begins by describing them as 'shipped.’ ”
In that case, the representation was that the goods had been shipped, which was false ; in this, the representation relied on as concluding the company is, that the certificates were genuine and valid, when they were not so. The principle of the case of Grant vs. Norway, was followed and fully sanctioned in the cases of Hubbersty vs. Ward, 8 Exch., 330, and Coleman vs. Riches, 29 Eng. L. & Eq. Rep., 323.
The act or representation of the transfer agent in issuing the certificates not being ground of estoppel, in respect to the validity of the stock, the next element relied on by the plaintiff to fix responsibility on the defendant is that of negligence in the officers and directors of the company, whereby, as it is alleged, the transfer agent was enabled to perpetrate the fraud by the issue of the spurious stock with the forged signatures of the president to the certificates.
Now, in order to make such negligent conduct effective for the purpose hero intended, it must be shown to be of a character that amounts to an estoppel, or something that amounts to an implied ratification. Mere negligence, remotely connected with the forgery, or the issue of the spurious stock, will not render the defendant liable. The negligence which would deprive the defendant of its right to insist that the certificates were spurious and therefore invalid, must have been negligence in, or immediately connected with, the issue of the certificates themselves. This is decided, and well and fully illustrated in the case *110of the Bank of Ireland vs. Evans’ Trustees, 5 Ho. L. Cas., 389. There, the trustees of an incorporated charity, having a common seal, and being possessed of stock in the public funds, which was registered in the Bank of Ireland, allowed their' seal to be in the custody of their secretary, who, without any authority, affixed it to five powers of attorney, prepared in different years, and signed by the trustees. The affixing of the seal was attested by a witness, who had never in fact seen it affixed, but without any fraudulent intent in so doing. The secretary presented the powers of attorney to the bank, and obtained the stock. And in an action by the trustees against the bank, for refusing to transfer the stock under a valid power of attorney, the Chief Justice in Ireland instructed the jury, that if they believed that the five powers of attorney were forgeries, then the verdict ought to be for the plaintiffs, unless they at the same time believed that the use made of the common seal of the trustees, whereby the defendants were imposed upon, was caused exclusively by the negligence or default of the plaintiffs, in which case the verdict should be for the defendants. On exception, this direction was held to be erroneous; and on the case coming into the House of Lords on writ of error, the Judges of England were required to attend the argument and give their opinion upon the case. And Mr. Baron Pauice, in delivering the unanimous opinion-of the Judges, said: “We concur with Mr. Justice Jackson, and Justices Ball, Crompton and Torrens, and the Chief Justice Leeroy, in thinking that the negligence which would deprive the plaintiff of his right to insist that the transfer was invalid, must be negligence in, or immediately connected with, the transfer itself.” And after referring to Young vs. Grote, 4 Bing., 253, the case of the altered cheque, he proceeded to say : “If there was negligence in the custody of the seal, it was very remotely connected with the *111act of transfer. The transfer was not the necessary or ordinary, or likely result of that negligence. It never would have been but for the occurrence of a very extraordinary event, that persons should be found, either so dishonest or so careless as to testify on the face of the instrument, that they had seen the seal duly affixed. ' It is quite impossible that the bankers could have maintained an action for the negligence of the trustees, and recover the damages they had sustained by reason of their having made the transfer. If such negligence could dis-entitle the plaintiffs, to what extent is it to go? If a man should lose his cheque-book, or neglect to lock the desk in which it is kept, and a servant or stranger should take it up, it is impossible in our opinion to contend that a banker paying his forged cheque would be entitled to charge his customer with that payment. Would it be contended that if he kept his goods so negligently that a servant took them and sold them, he must be considered as having concurred in the sale, and so be disentitled to sue for their conversion on demand and refusal ? It is clear, we think, that the negligence in the present case, if there be any, is much too remote to affect the transfer itself, and to cause the trustees to be parties to misleading the bank in making the transfers on the forged powers of attorney.” In this opinion, the Lord Chancellor and Lord Brougham fully concurred, and the case was ruled accordingly.
In the case before us the facts are not stronger to raise an estoppel than were the facts in the case just referred to. There the secretary was not only allowed to have the custody of the seal, but access to powers of attorney ready signed by the trustees. Here it was made the duty of the treasurer and transfer agent to keep the books for the registration and transfer of stock, and he was allowed access to the seal, which it was his duty to use on proper occasions, and he was furnished with books of blank cer*112tificates. It does not appear that there was anything very unusual or extraordinary in this ; and although it may be regarded as incautious or negligent thus to have confided in the transfer agent, it cannot be contended that the issue of false and forged certificates of stock was the necessary, or ordinary, or likely result of such negligence. There is no pretence that there was any fraudulent connivance on the part of the president and directors of the company, at the improper use of the facilities thus afforded the transfer agent for the issue and transfer of stock ; and it certainly cannot be regarded as such negligence in them as to render the company responsible, that they did not contemplate and render impossible the commission of forgery and fraud by their agent. Principals are not required, by any rule of law or justice, to act in reference to their agents upon the presumption that the latter will avail themselves of any opportunity or facility to commit felonies or crimes of any sort. There is no such criterion of responsibility.
The other facts relied on, that the president and directors failed to hold regular meetings, and to investigate the books and transactions of the agent, but acted upon the supposition that all was right at their office, may show that those officers were negligent in the discharge of their duty, but such negligence was not sufficiently proximate and connected with the issue of the forged certificates of stock in this case, to render the company liable.
In the case of Swan vs. The North British Australasian Co., 2 Hurls. & Colt., 175, in the Exchequer Chamber, (S. C., 7 Hurls. & N., 603, and 7 C. B., 400,) where a transfer of stock was procured by an agent of the owner, by means of a forged deed, and where the cii’cumstances of negligence on the part of the owner of the stock in facilitating the forgery, would appear to have been even stronger than those, in the case of The Bank of Ireland *113vs. Evans’ Trustees, the doctrine of the latter case was fully adopted after a most thorough consideration ; and it was held:
1. That negligence to operate as an estoppel in such case, must be the proximate cause of the loss; and,
2. That the transfers involved in that case were void, and that there was no such negligence on the part of the plaintiff suing the company for refusing to restore him to the rights of ownership of the stock, as would estop him from insisting that the property in the shares did not pass under the transfers procured by means of the forgery. The doctrine of these cases is not only applicable, but would seem to be conclusive of the question here involved.
The case of the New York and New Haven Railroad Company vs. Schuyler, et al., 34 New York Rep., 30, has been much relied on by the plaintiff, as an authority for the support of the propositions involved in the prayers under consideration. But the question of forgery was not involved in that case. That was an application in the nature of a bill in equity against Schuyler and others, to have a large number of alleged false and fraudulent certificates and transfers of pretended stock of the company made by Schuyler, and charged to be held by the defendants, adjudged spurious and void, and to compel the certificates to be brought into Court to be cancelled. It was the case of a fraudulent over-issue of stock. Schuyler was the president, and one of the directors of the company, and was, besides, transfer agent. It appeared that the board of directors had transferred to this agent all their powers in respect to the transfer of stock at the New York agency. They furnished him with blank transfers, certificates, assignments and powers, bound in books, the stock ledger and other account books, and gave into his absolute control the keeping and management of such books, and the employment *114and control of the clerical force necessary to that purpose. For more than seven years they left to him the unchecked and unquestioned management of the entire business of the transfer office; and it was by no means limited to the mere duty of permitting transfers and issuing certificates upon transfers. He was allowed to dispose of parcels of. the stock on account of the company ; and a very large amount of the stock was issued and disposed of on his own account, and for his own purposes. And in view of the great extent of the authority with which Schuyler was clothed by the company, either by direct appointment, or by recognition and ratification, or by actual enjoyment of the fruits of his acts, or by long acquiescence from which a presumption of agency could arise, the Court of Appeals of New York might well conclude, as they did, that the issuing of the certificates by such agent was within the scope of the real and apparent authority which he possessed, and that the rights of third parties were not affected by the fact that the agent used and intended to use the proceeds of the stock for his own purpose. This is the leading proposition decided by the case ; and while the case furnishes very good authority in support of the first and seventh prayers of the plaintiff, it has little or no direct application to any of his other prayers. The doctrine of estoppel in pais is discussed, it is true, but with reference to a very different state of facts from that presented in this case.
With these views, I am of opinion that the Court below committed no error in refusing to grant as instructions the second, third, fourth and sixth prayers of the plaintiff. But I- think the fourth and fifth prayers of the defendant, which were intended to present converse propositions to those presented hv the second, third, fourth and sixth prayers of the' plaintiff, should have been refused. They are too abstract in form, and seem *115to assume, as a principle, that no degree of negligence on the part of the president and directors of the' company, however proximate to the issue of the false and spurious certificates, could operate as an estoppel upon, or an implied ratification by, the defendant. No such proposition as that is intended to be maintained by anything said in this opinion, and I am quite sure it is not maintainable upon authority.
. For the reasons I have stated, I am of opinion that the judgment of the Court below should be reversed, and a new trial awarded.
I am authorized by Chief Judge Bartol to say that he concurs with me in the foregoing opinion.