The Chiee-Justice
delivered the opinion of the court on the demurrer:
The demurrer of the relator to the return oí respondents involves the sufficiency of the allegations of the alternative writ. We regard the facts stated in the writ to be sufficient.
The return is voluminous and for convenience its para, graphs have been numbered. A suggestion is made in the return that two hundred and fifty-three shares of stock in the railroad company was not the proper proportion of shares to which Suwannee county was entitled, because that number of shares is computed upon the basis of one thousand shares held by Columbia county, whereas the act contemplates a division upon the basis of “ the ten thousand shares held by Columbia county.” The allegations in the writ and the admissions of the return show that one thousand shares and no more were held by Columbia county. The words “ ten thousand shares ” contained in the act must be construed to name a maximum number of shares and to include all the shares so held by Columbia county, as the object of the act was to apportion these shares according to the relative value of property assessed for taxation in the territory of the several counties formerly composing -Columbia.
As to the allegation in Paragraph Ro. 12, that the officers of Columbia county had collected the sum of six thousand dollars from the tax-payers of Suwannee which had not been returned to Suwannee, no issue arises because it is admitted elsewhere in the return that the sum claimed by Columbia county remains unpaid on said Suwannee county bonds.
Paragraph 18 of the return admits that the bonds and coupons “ are held and owned by Columbia county,” but al[17]*17leges that they are not lawfully held and denies that such possession and ownership entitles Columbia county to collect the amount of money represented by thebonds and coupons. This paragraph must be construed as an admission that the bonds were delivered by Suwannee to Columbia county, and that Columbia is the holder thereof, but the denial therein of the right .of Columbia county to enforce the collection of the money, and the facts stated in those numbered 14,16 and 17 put in issue the legal liability of Suwannee.
The allegation in paragraph 30, that Columbia county has settled and compromised the entire bonded indebtedness at thirty cents on the dollar to the extent of $80,000, constitutes no defence on the part of Suwannee county, If the latter county is liable at all she was liable when the bonds were made and delivered, and the subsequent payment or compromise of Columbia does not enure to the benefit of Suwannee unless she was a party to the transaction and secured the benefit thereof by similar payment or compromise. A debtor is not released from his obligations by the fact that the creditor is insolvent or compounds his debts at less than he owes.
The liability of Suwannee county, if it existed, was not affected by the alleged fact (paragraph 24) that after the supposed assignment of stock to Suwannee, the officers of the county of Columbia voted upon the stock standing in her name on the books of the railroad company. If the transfer was made as contemplated by the act of the Legislature, Suwannee county had the legal right to have a transfer made by the company on the books of the company. If she neglected to do this she tacitly consented to the exercise of the privilege of voting the stock by Columbia county as a nominal stockholder.
It was not essential to an effectual assignment and trans[18]*18fer of this stock by Columbia county that the transfer should be made “ on the books of the company.” The provision of section 14 of the charter of the railroad company. (Chapter 481, Laws of 1852,) that any stockholder may have the right to sell or transfer his interest in the same or any part thereof, “ which transfer shall not be binding unless entered on the books of the company,” is a provision for the protection of the company as to any liens it may have on the stock, and that it may determine the right to vote, &c., in the management of the road, and does not affect contracts between holders and others concerning it which do not affect the rights of the company. Field on Corporations, §131; Duke vs. Cahawba Nav. Co., 10 Ala., 82 ; Chambersburg Ins. Co. vs. Smith, 11 Pa. St., 120 ; Eames vs. Wheeler, 19 Pick., 442; Stone vs. Hackett, 12 Gray, 227; Bank of Utica vs. Smalley, 2 Cow., 770, 778.
Paragraphs numbered 14, 16,17 and 28 make issues of fact which seem to materially affect the rights of the relator. The setting apart and transferring the shares of stock owned by Columbia county to Suwannee county was a condition and consideration of the execution and delivery of the bonds by the Suwannee County Commissioners. Chap. 895, Laws of 1859 ; Canova vs. Comrs. of Bradford Co., 18 Fla., 512.
Paragraph 28 of the return alleges that Columbia county has received from the R. R. Co. a large amount of dividends on the whole amount of stock, a pro rata share of which should be applied to the extinguishment of the bonds of Suwannee county. This shows a defence to the extent of the dividends applicable to the 253 shares of stock alleged to, have been set apart to Suwannee county.
Except the foregoing there are no material issues of fact presented by the return.
The demurrer is overruled with leave to plead over.
[19]*19The relators thereupon took issue upon the 14, 16,17 and 28 paragraphs of the return.
Upon the issues of fact coming on to be tried, the respondents demanded a jury, and relators opposed the same, contending that all issues should be tried by the Court, and i was argued by counsel for the respective parties.
The motion was denied, the following memoranda of views and authorities being filed by the Chief-Justice:
On the motion of respondents that a jury be called to try the issues of fact. Statute of 9 Anne refers to specific cases, viz : controversies between persons claiming offices and archives.
The principles of pleading in such cases provided in that act have been adopted by the courts generally.
At common law no issues were tried. The return was conclusive. But since that act issues have been allowed to be made up and tried.
We have no statute requiring or authorizing such issues to be tried by a jury in this court. Ho such statute existed when the Constitution was adopted.
Constitutional jurisdiction of the writ is conferred on this court, and the proceeding is at common law.
The right of trial by jury preserved by the Constitution is not extended to cases where it did not exist before.
Statute of 9 Anne, ch. 20; High Mand., p. 647; High Ex. Remedies, §448 ; Universalist Ch. vs. Columbia, 6 Ohio R., 446; Chumasero vs. Potts, 2 Mont., 265 ; Castle vs. Lawlor, 47 Conn., 340.
Motion denied.
The trial of the issues of fact then proceeded, and witnesses were examined orally, and documentary evidence introduced by both parties—and the cause was argued by counsel, and taken under consideration by the court, and at a subsequent day—
[20]*20The Chief-Justice
delivered the opinion of the court upon the final hearing.
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The Chiee-Justice
delivered the opinion of the court on the demurrer:
The demurrer of the relator to the return oí respondents involves the sufficiency of the allegations of the alternative writ. We regard the facts stated in the writ to be sufficient.
The return is voluminous and for convenience its para, graphs have been numbered. A suggestion is made in the return that two hundred and fifty-three shares of stock in the railroad company was not the proper proportion of shares to which Suwannee county was entitled, because that number of shares is computed upon the basis of one thousand shares held by Columbia county, whereas the act contemplates a division upon the basis of “ the ten thousand shares held by Columbia county.” The allegations in the writ and the admissions of the return show that one thousand shares and no more were held by Columbia county. The words “ ten thousand shares ” contained in the act must be construed to name a maximum number of shares and to include all the shares so held by Columbia county, as the object of the act was to apportion these shares according to the relative value of property assessed for taxation in the territory of the several counties formerly composing -Columbia.
As to the allegation in Paragraph Ro. 12, that the officers of Columbia county had collected the sum of six thousand dollars from the tax-payers of Suwannee which had not been returned to Suwannee, no issue arises because it is admitted elsewhere in the return that the sum claimed by Columbia county remains unpaid on said Suwannee county bonds.
Paragraph 18 of the return admits that the bonds and coupons “ are held and owned by Columbia county,” but al[17]*17leges that they are not lawfully held and denies that such possession and ownership entitles Columbia county to collect the amount of money represented by thebonds and coupons. This paragraph must be construed as an admission that the bonds were delivered by Suwannee to Columbia county, and that Columbia is the holder thereof, but the denial therein of the right .of Columbia county to enforce the collection of the money, and the facts stated in those numbered 14,16 and 17 put in issue the legal liability of Suwannee.
The allegation in paragraph 30, that Columbia county has settled and compromised the entire bonded indebtedness at thirty cents on the dollar to the extent of $80,000, constitutes no defence on the part of Suwannee county, If the latter county is liable at all she was liable when the bonds were made and delivered, and the subsequent payment or compromise of Columbia does not enure to the benefit of Suwannee unless she was a party to the transaction and secured the benefit thereof by similar payment or compromise. A debtor is not released from his obligations by the fact that the creditor is insolvent or compounds his debts at less than he owes.
The liability of Suwannee county, if it existed, was not affected by the alleged fact (paragraph 24) that after the supposed assignment of stock to Suwannee, the officers of the county of Columbia voted upon the stock standing in her name on the books of the railroad company. If the transfer was made as contemplated by the act of the Legislature, Suwannee county had the legal right to have a transfer made by the company on the books of the company. If she neglected to do this she tacitly consented to the exercise of the privilege of voting the stock by Columbia county as a nominal stockholder.
It was not essential to an effectual assignment and trans[18]*18fer of this stock by Columbia county that the transfer should be made “ on the books of the company.” The provision of section 14 of the charter of the railroad company. (Chapter 481, Laws of 1852,) that any stockholder may have the right to sell or transfer his interest in the same or any part thereof, “ which transfer shall not be binding unless entered on the books of the company,” is a provision for the protection of the company as to any liens it may have on the stock, and that it may determine the right to vote, &c., in the management of the road, and does not affect contracts between holders and others concerning it which do not affect the rights of the company. Field on Corporations, §131; Duke vs. Cahawba Nav. Co., 10 Ala., 82 ; Chambersburg Ins. Co. vs. Smith, 11 Pa. St., 120 ; Eames vs. Wheeler, 19 Pick., 442; Stone vs. Hackett, 12 Gray, 227; Bank of Utica vs. Smalley, 2 Cow., 770, 778.
Paragraphs numbered 14, 16,17 and 28 make issues of fact which seem to materially affect the rights of the relator. The setting apart and transferring the shares of stock owned by Columbia county to Suwannee county was a condition and consideration of the execution and delivery of the bonds by the Suwannee County Commissioners. Chap. 895, Laws of 1859 ; Canova vs. Comrs. of Bradford Co., 18 Fla., 512.
Paragraph 28 of the return alleges that Columbia county has received from the R. R. Co. a large amount of dividends on the whole amount of stock, a pro rata share of which should be applied to the extinguishment of the bonds of Suwannee county. This shows a defence to the extent of the dividends applicable to the 253 shares of stock alleged to, have been set apart to Suwannee county.
Except the foregoing there are no material issues of fact presented by the return.
The demurrer is overruled with leave to plead over.
[19]*19The relators thereupon took issue upon the 14, 16,17 and 28 paragraphs of the return.
Upon the issues of fact coming on to be tried, the respondents demanded a jury, and relators opposed the same, contending that all issues should be tried by the Court, and i was argued by counsel for the respective parties.
The motion was denied, the following memoranda of views and authorities being filed by the Chief-Justice:
On the motion of respondents that a jury be called to try the issues of fact. Statute of 9 Anne refers to specific cases, viz : controversies between persons claiming offices and archives.
The principles of pleading in such cases provided in that act have been adopted by the courts generally.
At common law no issues were tried. The return was conclusive. But since that act issues have been allowed to be made up and tried.
We have no statute requiring or authorizing such issues to be tried by a jury in this court. Ho such statute existed when the Constitution was adopted.
Constitutional jurisdiction of the writ is conferred on this court, and the proceeding is at common law.
The right of trial by jury preserved by the Constitution is not extended to cases where it did not exist before.
Statute of 9 Anne, ch. 20; High Mand., p. 647; High Ex. Remedies, §448 ; Universalist Ch. vs. Columbia, 6 Ohio R., 446; Chumasero vs. Potts, 2 Mont., 265 ; Castle vs. Lawlor, 47 Conn., 340.
Motion denied.
The trial of the issues of fact then proceeded, and witnesses were examined orally, and documentary evidence introduced by both parties—and the cause was argued by counsel, and taken under consideration by the court, and at a subsequent day—
[20]*20The Chief-Justice
delivered the opinion of the court upon the final hearing.
The question submitted upon the final hearing of this cause is, whether as between Columbia and Suwannee counties there was such a “ setting apart and transfer ” by Columbia county Commissioners to the county of Suwannee of so many shares of the capital stock of the A. & G-. C. R. R. Co. “ as shall be necessary to constitute a fair division ” of the stock held by Columbia county, upon the basis of the assessed valuation. Chapter 895, Laws of 1858-9.
It is agreed that of the one thousand shares held by Columbia county, the proportion to which Suwannee county was entitled was 253 shares. Columbia county held a certificate for one thousand shares, issued by the railroad company, which certificate was the evidence of ownership.
On the setting apart and transferring to Suwannee county of 253 shares, the county of Columbia was entitled to the bonds of Suwannee county, for the face value of the stock, to wit: $25,300.
The evidence .submitted shows, by the records of the County Commissioners of Suwannee county, that on the 12th day of February, 1861, a committee of the County Board of Columbia county met the Suwannee County Board and presented to them a paper, signed and authenticated by the Columbia Board, dated February 5,1861, reciting that in consideration of $25,300, as well as in pursuance of the act of the General Assembly, approved Dec. 21,1858, the Board of County Commissioners of the county of Columbia “do hereby set apart and transfer to the county of Suwannee, in said State, two hundred and fifty-three shares of stock in the Florida, Atlantic and Gulf Central 'Railroad Company, being the relative portion of [21]*21the one thousand shares of said stock now held by said county of Columbia to which said county of Suwannee is entitled upon a' fair division thereof between the three counties of Columbia, Suwannee and Rew River, * * * and we hereby authorize said county of Suwannee to receive in her name certificates of said shares.” This was signed by the Commissioners of Columbia county under their seals.
On the same 12th of February, 1861, at a meeting of the County Commissioners of Suwannee county, as shown by their records, they recite the tender to them by the Columbia Commissioners of the 253 shares of stock, and “ it is therefore ordered that we accept the transfer of said stock and that we issue our bonds for the above amount of twenty-five thousand and three hundred dollars to the Board of County Commissioners of Columbia county, bearing date with these presents. On motion it was ordered that J. Caraway be appointed a committee of one to procure bonds with coupons attached and tender to Columbia county for the stock transferred, at as early a day as practicable.”
On the paper presented by the Columbia Commissioners is indorsed the following, signed by the Commissioners of Suwannee county: “ Be it remembered, that on this, the 12 day of February, A. D. 1861, that we, the County Commissioners of Suwannee county, do hereby accept the within named transfer with all its legal bearings, and was entered upon the records of said court.”
Columbia county is in possession of the bonds signed by the President of the Board of Commissioners of Suwannee county, with coupons attached, executed in pursuance of the foregoing order of the Commissioners of Suwannee county, which bonds and coupons are the basis of this proceeding. Being the holder, she is presumed to [22]*22be. the legal holder and owner by a delivery by the maker.
The lawful delivery was denied, but there is no evidence to rebut the presumption of due delivery, arising out of the facts stated.
But Suwannee county denies the consideration, to wit: the due “ setting apart and transfer ” of the stock of the railroad company, which is a condition precedent to the liability of Suwannee on her bonds.
The paper presented by the Columbia County Commissioners to the Commissioners of Suwannee is an assignment by the Columbia County Commissioners' to Suwanneecounty of two hundred and fifty-three shares of stock in the railroad company. It “ set apart and transferred ” to Suwannee county 253 shares of the one thousand shares held by Columbia county.
But it is objected that the transfer was not made upon the books of the R. R. Co.
We have held in a previous opinion in this case that a transfer on the books of the R. R. Co. was not necessary to an assignment of the stock as between the contracting parties. A review of the authorities confirms this opinion.
But they say the 1;000 shares were held in one certificate and no certificate for 253 shares of that stock was ever delivered by Columbia Commissioners to Suwannee. It is not to be controverted that there was assigned to Suwannee 253-shares of the stock. That assignment in law and in equity gave Suwannee county an interest in the stock of Columbia county to the amount named, and by the same act Columbia county parted with it. The certificates of stock are not stock but the tangible evidence of ownership. The assignment not only transferred the property called stock,- but authorized Suwannee county to receive the certificates thereof in' her own name. What more did she demand ? She had the transfer of the property, she owned it, and she had the au[23]*23thority to procure the evidence of ownership of that property from the railroad company. She had the value, and all that was necessary to become a voter in the railroad company was to obtain the certificate if she wanted it. Suwannee accepted the transfer by assignment and ordered the unconditional delivery of the bonds, and the bonds were delivered as is shown. It does not appear that there was any obstacle to the “ transfer on the books of the company,” for it does not appear that Suwannee' county ever a-pplied for such transfer ; nor does it appear that any legal or equitable right was ever denied her.
Columbia county said to her, “ we hereby assign the stock and when you want stock certificates to represent what we have given you go and take them, you have our assent, and meantime we have the evidence of the ownership which is at your command, and so your title is indisputable.”
Did not Suwannee county become invested by the assignment with 253 of the 1,000 shares ? Did she not become an owner, legally and equitably, with Columbia county in the 1,000 shares ? Until Suwannee county chose to take possession of the muniments of title at her command, and so long as she allowed Columbia to hold those muniments as a constructive trustee, Columbia was liable to account for all profits which accrued upon the 253 shares.
No authorities are produced to oppose this right of property in Suwannee county. None have been produced which deny'her right to compel the issue of stock certificates in her own name if she desires to hold them.
It is true that if an assignee of stock in an incorporated company chooses to permit it to remain registered in the name of the assignor, it may as a matter of law become liable to be seized for the debts of the registered owner, but that is the penalty of neglect to make a transfer on the [24]*24books of the corporation. Many of the cases cited by counsel are cases of this character. There can be no pretence that the value of this stock has been lost to Suwannee county for any such reason. There was no time while the E., A. & Gf. C. R. R. Co. was in existence that she could not have had her own name entered on the books of the company by means of the assignment which she accepted ; and the courts would have enforced her right if the company or Columbia connty had been disposed to resist it.
The stock books and records of the proceedings of the railroad company were put in evidence to show that the stock was registered in the name of Columbia county, and that her County Commissioners had, after the assignment of the 253 shares, still voted the 1,000 shares in the election of officers and the management of the affairs of the railroad company, electing citizens of Columbia county to its offices and keeping the principal office within the county.
But we do not see that this action or these circumstances affect the rights of Suwannee county. The Commissioners of Columbia county voted the 1,000 shares because they stood in their name on the books. The action of these County Commissioners was lawful for that reason. That Suwannee county was entitled to vote this stock upon making the proper application we cannot question. That her Commissioners neglected to take care of her interest was doubtless because they were satisfied that they were properly cared for by their neighbors of Columbia. The stock remained her property notwithstanding she permitted other people to use it.
There is no evidence to support the allegation of the return that the bonds were obtained by Columbia County Commissioners by means of any fraud or false representation or pretence, or that any improper representations were [25]*25made to the Commissioners of Suwannee county of law or fact in the matter.
Kor is it shown that Columbia county received as dividends on account of the railroad stock anything of value for which she should account to Suwannee county in abatement of the amount due on its bonds.
A peremptory writ is granted.