Holt, PRESIDENT:
In reviewing this case I have patiently followed the points involved down to minute details with an expenditure of time that would he manifest by giving such details, but that would encumber this opinon with a mass of statements and figures which could answer no useful end.
The conclusions reached are tire following: First. The 'Jewett receipts for payment of one hundred shares of stock are already in the name of John. P. Logan, by certificate Ho, 6, for one hundred shares, issued to him as assignee, on the 19th day of February, 1873. Second. There is a high degree of probability that the receipts of payment taken in the name of R. D. Barclay made -for stock, say twenty thousand dollars by Col. Thomas A. Scott from 22d September, 1870, to 9th August, 1872, are not, and have not been since the 15th day of September, 1874, subsisting outstanding evidences of his ownership, legal or equitable, of that amount or any amount of the stock of the Central Improvement Company. At any rate,- from some cause, whatever it may be, Col. Scott’s estate is not made to appear now to be the owner of any stock in the Central Improvement Company. Third. The Central Improvement Company owed its creditors the [631]*631snm of three hundred and eighty one thousand nine hundred and ninety six dollars and seventy one cents. It had a decree against the Shenandoah Valley Railroad Company for seven hundred and ninety one thousand three hundred and thirty eight dollars, with interest from the 1st day of July, 1890, till paid — and it had nothing else; but there were liens and charges against the railroad, etc., of the railway company decreed to be sold, of higher dignity, and first to be paid, amounting to six million and six hundred thousand dollars. This was in the stringency of 1873, and, unless some one could be induced to bid something over the amount of this prior lien, then the Central Improvement Company would have of assets not one cent. All the creditors thought it wise and best to give parties who were able to buy a bonus of two hundred thousand dollars, afterwards reduced to one hundred and sixty thousand dollars, to make the property bring seven million and one hundred thousand dollars or over. On'e hundred and thirty four out of one hundred and thirty eight in value of the stockholders thought 'this, the best — the only — thing to do, and did it in an informal way. The only one who complains 'is one stockholder, who has about one and thirty nine one-hundredths of the stock; say, four thousand one hundred dollars. He ‘knew of the arrangement in its mailing and accomplishment, but stood by without assent or dissent. He also knew that his elsewise insolvent corporation was largely in debt. It was no error in the court, under such circumstances, to charge his stock with its proper proportional part of this item of expense.
I have no question but that'the Jewett stock is already, in and allowed to John P. Logan. Logan' was not a subscriber; Jewett was, with receipts for his one hundred shares, containing the following: “This receipt to be surrendered upon receipt of stock.”-' So that these receipts were evidence of the ownership of stock, and were used to transfer and pledge and deposit as collateral for loans, just as the certificates were. Jewett, about that time, and at the time of his death, in the early part of November, 1875, was hard pressed; “and at his death his estate was in a very complicated condition, and his securities were scattered 'everywhere, and it was [632]*632with great difficulty that we could ascertain really what he had. We had to go round personally to the different banks and places where his securities and papers were hypothecat-ed to get any information about them at all.” (Exhibit of William. M. Stewart, Sr., one of his executors).
Logan gave a note for five thousand dollars for his purchase of stock. He found the note in bank indorsed by Judge Jewett, and, when he paid it, the money was put to Judge Jewett’s credit, and the certificate of stock was issued to Logan himself, on the 19th day of February, 1873. The treasurer’s memorandum on his books shows that receipts of payment of some one were used. Whose receipts of payment for the one hundred shares of stock were used if not those of Jewett? His receipts of'payment were never taken up and money returned. There was only one hundred and thirty eight thousand dollars in all. One hundred and thirty four thousand dollars including the Logan 'five thousand dollars, are accounted for; and now to allow this to Jewett’s estate runs the amount to one hundred and thirty nine thous- and dollars, which can not well be so if the treasurer’s official report of money paid in on stock, proved by his deposition in this case to be correct, is to‘be taken as true. It is no answer to say that in reaching this conclusion the court would be taking a mere conjecture, based on probability. Courts, in determining’ facts, act upon nothing else but probabilities of more or less cogency and convincing power. In fact, all human conduct and belief is based on probabilities. All that wo have to see to is that we do not go by what is called “mere conjecture” — an inference based on presumptive evidence so slight, so non-exclusive of other reasonable modes of explanation, as to amount to a mere suspicion or surmise; a thing based on feeble or scanty evidence. There is nothing to contradict' this but the fact that he once had receipts which can not now be found. This is because these executors have overlooked in. the wrong place, and not in the right place, that is, among the file of receipts surrendered among the papers of the company, if such things were preserved. I will illustrate the distinction by the Scott claim of stock in [633]*633this case. When I started to examine this record, and to xeadandre-readthe evidence,and to scrutinize.the transcript of the treasurer’s booh of issue of certificates of stock, my .attention was arrested by the following, all on the one page (268) as follows:
Page 258. No. 15. 133 shares.
Issued to M. Baird. 8 — 6, 1874..
Received certificates as above described.
M. Baird,
By M. Baird & Co., in liq.,
Per W. 0. Stroud.
Transferred to No. 30, Canceled.
No. 16. 267 shares.
Issued to Burnham, Parry, Williams & Co.
8 — 6, 1874.
Received certificates as above described.
Void — Not issued, J. P. G-.
No. 16. ■ 267 shares.
Issued to Burnham, Parry, Williams & Co.
8 — 16, 1874.
Received certificates above described.
Burnham, Parry, Williams & Co:
Per W. C. Stroud.
Here we have the receipts of payment of twenty thousand dollars for four hundred shares of stock presented by M. Baird and Burnham, Parry, Williams & Co., acting by one W. C. Stroud, neither of them apparently original subscribers, but M. Baird holding and presenting through Stroud such receipts to the amount of six thousand six hundred .and fifty dollars, and Burnham, Parry, Williams & Co. holding and presenting such receipts to the amount of thirteen thousand three hundred and fifty dollars. No original subscriber subscribed to either one of such amounts.
If we stop at this point, it'would be a mere conjecture that these were the Scott receipts of payment of twenty thousand dollars for four hundred shares of stock, receipted for. in the name of Barclay, the manager of his private business, and it remains conjecture by itself. On the 13th day of April, 1874, .and down to the 29 th day of August, 1874, when he resigned, [634]*634R. D. Barclay was the president of the Central Improvement Company. In the suit in chancery, by bill for injunction of the County Court of Jefferson county, W. Va., against Thomas N. Ashley, secretary of the Shenandoah Valley Railroad Company, J. Edgar Thompson, trustee, Matthew Baird, Central Improvement Company, and the Shenandoah Railroad Company, the writ of summons was served on said Barclay, as president of said company, on tire 13th day of April, 1874, in the city of Philadelphia, the place of his residence, and with it was an order of injunction restraining J. Edgar Thompson, trustee, also Matthew Baird, as well as William McClellan, the president of the Shenandoah Valley Railroad Company, from assigning certain mortgage bonds, but they were required to hold them subject to the further order of the court; also restraining Phillip Collins, proxy of the Central Improvement Company, and any and all other persons, from representing or claiming to represent! the stock of the-Central Improvement Company in the stockholders’ meeting of the said Shenandoah Valley Railroad Company to be held on the 7th day of April, 1874. On the 13th day of April, 1874, notice was served on R. D. Barclay, the president of the-Central Improvement Company, that on Tuesday the 21st day of April, 1874, at the hotel of D. Adams, in 'Luray, Page-county, Va., and at other places, certain depositions would be taken. In that bill it -was charged that Thomas A. Scott was the president of the Shenandoah Valley Railroad Company, and was also the owner in substance, if not in name, of forty thousand dollars in the stock of the Central Improvement Company; “that this stock now stands on the books of said company in the name of R. C. (D.) Barclay, the president of the said Central Improvement Company;” and that the contracts attacked between the railroad company and the improvement company were for that reason void. Barclay did not put in the answer of his Central Improvement Company as its president, as he was called on to do, but resigned the presidency on the 29th day of August, 1874, and Phillip Collins was elected as president in his place. Thomas-A. Scott was still alive, for he did not die until 1881.
The new president, Phillip Collins, sought information and [635]*635knowledge on this vital point, so that he might make answer to this charge, and prepared and filed his answer, signed with his name, as president of the Central Improvement Company, to which he affixed its corporate seal, on the 15th day of September, 1874, accompanied by his affidavit, sworn to and subscribed on the 19th day of September, 1874, that the same was the seal of the Central Improvement Company, and the above attestation of the same was his signature; and his answer on that point is as follows: “It is admitted that the said Thomas A. Scott was president of said company (Shenandoah Valley Railroad Company) and Jonas W. Walker, vice president, when said contracts Nos. 2 and 3'were made; but it is not admitted, but denied, that said Scott was then, or ever has been a stockholder ini the Central Improvement Company.” It is still mere conjecture that W. C. Stroud presented these Scott receipts of payments on the 6th day of August, 1S74,and obtained certificates Nos. 15 and 16; but it is certainly a circumstance in the case tending to show that the estate of Col. Scott does not now show, itself to be the owner, legal or equitable, of four hundred shares of stock; and I use this only to show how readily they might pass into certificates issued in some other name. Are we to be told that Col. Scott at some time from the 29th day of August, 1874, to the 15th day of September, 1874, deliberately told Phillip Collins, president of the C. I. Co., that he was not a stockholder in the G. I. Co. when he was in fact the owner of four hundred shares ? He knew it was the right of Collins to ascertain the truth, and make it known to the court, and it would take a good deal to convince me that Col. Scott misrepresented that fact to Collins, especially when the bill of injunction was served on the parties — on the 9th day of April on Collins, on the 7th of April on R. D. Barclay, on the 13th of April on U. L. Boyce, on A. K. McClure on the 7th of April, on Wm. McClellan on the 14th day of April, on Thomas N. Ashby on the 7th of April, on J. Edgar Thompson and Matthew Baird on the 13th day of April, 1874; and Collins’ answer was completed and signed, sealed and attested, on the 19th September, 1874. That he did so is highly improbable. He had never accepted the four hundred shares. It [636]*636was put, from the start, in the name of his deservedly trusted agent, R. D. Barclay, for the use of the Penn. R. Co., or for some other person, or for whomsoever he might direct. So that he answered Collins truthfully that he never was the real owner. Mr. Barclay says that Col. Scott had full and complete access to these receipts of payment; that he would not have been obliged to call on him for this evidence of stock in order to deliver it to a purchaser. He had full access to it, and the right to do with it as he pleased. But Mr. Barclay, when quesüoned by McKeehan and the son and one of the executors of Scott, replied “that it had been so long- ago that he had no recollection whether Col. Scott had any stock or not.” When they asked Capt. J. H. Creen, he said: “He didn’t remember anything about it; it was so long ago.” This was after the decree had been entered in this suit directing a commissioner to• ascertain and report who were the owners of the Central Improvement Company’s stocks, a suit which1 they both knew was. pending. Mr. Barclay kept no accounts or memoranda of any kind, took no list, made no inventory of the securities he turned over in solido to- the executors of Col. Scott in the summer of 1881. Now, after studying about it, he has the impression that these receipts were among the securities of Col. Scott which he turned over to his executors.
The evidence shows that these securities were kept together. They were in the aggregate of great value. Can any one convince us that they have not been carefully looked through again and again, or that it is any great task to search through them for an envelope carefully endorsed, “Central Improvement receipts;” for Mr. Barclay testifies that “he did not know how to ‘keep books:’ in the general ac-ception of the term;” that “he had charge of Col. Scott’s personal business, as distinguished from his official railroad business, from the 1st of November, 1862, until the time of his death, which occurred in May, 1881;” and that such a thing as keeping regular books for Mr. Scott was never done. “I never kept books like these or anything of the sort. When I got a receipt of that sort, I simply put it in an envelope, and on the back of it I put, ‘Central Improvement Co. receipt,’ [637]*637and put that, you understand, in the safe; and then I would get another one, and would put that in. That is the way it was done.” This gentleman, who, from his whole testimony shows that he deserved the confidence for honesty and integrity which Col. Scott reposed in him, also shows us with complete frankness that his ten-years inference or conjecture that this envelope was there, to be turned over to the executors with the other securities of Col. Scott, can not override the inherent probabilities, and other well-known circumstances to the contrary surrounding the transaction. In fact, it was only an impression of his, for he shows that ten years had caused his memory to grow dim. They were carefully done up, marked and placed in a safe among other securities, and ones of great value, in May, June, July, and August, 1872. Why are they not found there in 1881? There is but one probable answer. They were taken out by Col. Scott or by his direction in 1874. There is no need to hunt among the heaps of miscellaneous papers of Col. Scott stowed away, and out of the way, in trunks and boxes. Col. Barclay never put them there, nor the executor’. They are what are called “securities” by these witnesses. Among them they were placed, and among them they are not to be found. If they are in the trunks and boxes, then the trunks and boxes are to be searched, and that confessedly has not been done. There is a high degree of improbability that they are outstanding. Down to October 14,1873, one thousand nine hundred shares had been evidenced by certificates issued. Nine hundred were issued from August 29, 1874, when Capt. Green went out as treasurer, and Col. Barclay as president, down to the 21st day of February, 1880, when the three Collins certificates, of one hundred shares each (Nos. 38, 39 and 40) were-issued, which were the last; making two thousand eight hundred in all, not including transfers and sub-divisions, which have to be included to bring the number up to three thousand seven hundred and fifty six, and the par value to one hundred and eighty seven thousand eight hundred dollars — a mode of counting which may mislead, and for our purpose can have'no ■ other effect. No. 20, for one hundred and thirty four shares, to D. E. Small, per John H. Small; No. 21, for one hundred [638]*638and thirty three shares, to John H. Small; No. 22, for one hundred and thirty three shares, to administrator of Charles Billmeyer, deceased, per John H. Small — were all issued on the 15th day of December, 1876. These were issued when witness McKeehan was secretary and treasurer, and Phillip Collins was president. No money was then paid, for “they had paid their money, and had receipts for the money being paid; and, upon the direction of Capt. Creen, I issued those certificates to them.” (Deposition of C. W. McKeehan). Same witness says the three certificates, of one hundred shares each (Nos. 38, 39 and 40), issued to P. and S. Collins, per Phillip Collins, on February 21,1880, were the original certificates issued to Mr. Collins. “I simply tore out from the back of the book blank certificates, and filled them up.” No money was then paid. “Mr. Collins had given whatever consideration he gave for his stock long before that, but they had not been issued until that time; that is, the certificates had not been issued until that time.” “I did it at the request of Mr. Collins. He was the president, and signed it, and I signed as secretary.” “I don’t remember what the original authority was on which to make the original issue of three hundred to Mr. Collins, but it was some writing from the Pennslyvania Railroad office. It was from Mr. Barclay or Mr. Creen. There was abundant authority for issuing it, as I understood it.” It appears to have been paid for in 1870, as shown by books of B. H. Jameson, treasurer. All this evidence before us, scrutinized in detail, and put together, points with a very high degree of probability to the fact that these receipts of payment made by Col. Scott are not outstanding. From some cause, whatever it may be, Col. Scott’s estate is not made to appear now to be the owner, legal or equitable, of stock in the Central Improvement Company and, for the purpose in hand, that which does not appear does not exist.
Charles McFaddes’s Claim.
After the decree was entered directing Master Commissioner Brown to ascertain and report who were the holders of IheCentraljlmprovement Company stock, and to what extent, [639]*639McKeelian wrote him several letters, 'asking him if he had ■stock, and how much, telling him that he wanted to find out .■all the stock that was out. These letters were written along through the year 18S4, and the last one just after the entering ■of the above decree, as near as witness was then able to fix the date. So also, Commissioner Brown gave the usual published notice, fixing time and place for the owners to file their claims and produce evidence of ownership. It will be remembered that the amount of recovery of the Central Improvement Company against the Shenandoah Yalley Railroad Company in income bonds was to be and by the court was measured and determined by the amount of the paid-in capital stock of the Central Improvement Company, and hence the importance of having it all in. Mr. McFadden saw fit to stand out, and declined to produce his evidence of ownership of stock until ihe amount of recovery on the above basis had been unalterably fixed at one hundred and thirty eight thousand one hundred dollars. If it is not included in that sum, about which there has been a costly and vexatious dispute, the fault, in part at least, is his, for he sat idly by without any sufficient excuse for his non-action. Now, he comes into the cause, and presents as his evidence of ownership the three following certificates of payment:
“No. 4. Philadlphig, February 5, 1872. Received of Charles McFadden, Esquire, two thousand — dollars, being a 1st installment of forty per cent, on his subscription to one hundred shares of the capital stock of the Central Improvement Company. $2,000. John P. Creen, Treasurer pro tern. This receipt to be surrendered upon receipt of stock.”
“No. 9. Philadelphia, May 14, 1872. Received of Charles McFadden, Esq., one thousand dollars, being an installment of 20 per cent, on his subscription to one hundred shares of the capital stock of the Central Improvement Company. $1,000. John P. Green, Treasurer. This receipt to be surrendered upon receipt of stock.”
“No. 14. Philadelphia, June 24, 1872. Received of Chas. McFadden, Esq., one thousand dollars, being an installment of 20 per cent, on his subscription, one hundred shares of the capital stock of the Central Improvement Company. John [640]*640P. Green, Treasurer. This receipt to be surrendered upon receipt of stock.”
The stockholders of the Central Improvement Company found by their decree for the sale of the Shenandoah Valley Railroad that in order to reach their claim of eight hundred thousand dollars they would have to bid the sum of six million six hundred thousand dollars. In this emergency they called a meeting of stockholders, formal or informal, to see if anything could be done. A committee was appointed, charged with the duty of securing a bidder for the road, and it was empowered to use the assets of the company at its discretion to accomplish that purpose. This, I suppose, would be regarded as an informal meeting of owners of stock; but there was present, either by present action or subsequent ratification, sixty seven sixty-ninths of the stock. It resulted in their securing a bidder by giving such bidder two hundred thousand dollars out of the stock thus to be realized in full. This bonus was afterwards reduced to one hundred and sixty thousand dollars, with which sum the fund in court was charged before distribution. This was done by the consent of the numerous creditors of the Central Improvement Company, whose claims were thus paid to the last cent, amounting to about three hundred and eighty two thousand dollars; and without such arrangement, neither they nor the subordinate stockholders’ claim would have realized one dollar. This is shown to have been proper, and eminently wise and discreet, and under the circumstances of the hard times of 1873, fortunate. Such is shown to be the fact as far as the probabilities can show a fact by an overwhelming array of testimony, for there is no attempt to- show any fact tending in any degree to establish the contrary. This was a matter for the owners, and the Court has nothing to say on the subject; but Mr. McFadden says he did not participate in forming the committee, and is not bound by their action. Surely, I can not be mistaken in saying that as against him, in order to pay the creditors of his elsewise insolvent company, the charging of the fund with this one hundred and sixty thousand dollars was right. It was also right in view of the [641]*641interests of the stockholders as against him, the only one having any interest who is heard to complain.
The court also charged the fund before distribution with attorney’s fees to the amount of two hundred thousand dollars. This was based on a private arrangement for contingent fees of one-fourth and more of the recovery made between client and attorney with which, for the most part, the court has nothing to do, and as to which creditors of this elsewise hopelessly insolvent company whose claims aggregate three hundred and eighty one thousand nine hundred and ninety sis dollars and seventy one cents do not complain, and which is agreed to and insisted upon as right by one hundred and thirty four in value and out of one hundred and thirty eight of the stockholders. I am not sure but what, taking into consideration the interests of the creditors of the Central Improvement Company, it was right ; but we do not wish, under any circumstances, to give our sanction to a growing evil of the courts, viz., without any contract between client and attorney, their charging large fees against the fund to be distributed. Therefore, we are of opinion that Mr. McFadden’s ciaim should not be charged with any part of the attorney’s fees, and in so far as the decrees complained of do so, they are hereby reversed; but in- lieu thereof, reasonable, customary and proper charge, if any, on his claim, in favor of those attorneys who had for him and others the conduct of the case, should be made. With this modification to be made in the court below, the rest of the decrees complained of are affirmed, and the cause is remanded for further proceedings.