Page:United States Reports, Volume 209.djvu/392

 366 OCTOBER TERM, 1907. Argument for Petitioner. 209 U. S. A certificate of stock i not the property itself but the evidence of the prop- erty in the shares, and, as one share of stock is not different in kind or quality from every ether share of the same issue and company, the re- turn of a different certificate, or the right to sultitute one certificate for another of the same number of shares, is not a material chane in the property Hght held by the broker for his customer. A broker who turns over to a customer, upon demand and payment of ad- vaness, stock which he is carrying on margin for that customer, or cer- tificate for an equal number of share, dons not make the customer a preferred creditor within the meaning of �a of the bankrupt law; in the abeence of fraud or preferential transfer the broker has the right to continue to use his estate for the redemption of pledged stocks in order to comply with lJe valid demand of a customer for stocks carried for him on margin. A payment by the broker to a customer on account of excess marglus to which the customer is entitled and which is taken into consideration when the account is finally cloeed, hdd, under the circumstances of this cace, not to be a preferential payment within the mean of t Oa of the bankrupt law. 147 Fed. Pep. 659, affirmed. Tm facts are stated in the opinion. Mr. John Brooks Leavitt, with whom Mr. Hen .rnold Rzhardson was on the brief, for petitioner: In the eye of the bankrupt law, the respondeuts were cred- itors of the insolvent, and his transfer to them o! assets of his own, whereby they were enabled to redeem without loss to themselves the stock which in carrying on their accounts he had pledged on general loans, constituted a'preference over other customers as creditors in the same class. Plainly so, if the /oc/is to govern. The contract was, made and performed in Msachusetts, under wh. oee law broker nd customer are parties to an executory contract, whereby broker is obligated to deliver to his customer on demand specified stocks at a price certain. Wood v. Hayes, 15 'Gray, 375; Co,ell v. Loud, 135 Massachusetts, 41; Cha v. Boston, 180 Massachusetts, 458 If the broker does not comply, the customer has a claim preyable in insolvency. Lothtop v. Reed, 13 Allen, 294..

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