Page:United States Reports, Volume 209.djvu/406

 380 OCTOBER TERM. 1907. Opinion o! the Court. 209 U.S. interpretation of the contract preserv as its distinctive feature the principal propoition that the customer purchases merely the right to have delivexy to him in the future, at his option, of stocks or securities at the price of the day of the agreement, and its corollary that the customer derives no right, title or interest in the stocks or securities until final perform- ance, the difficulties in the way of harmonizing the situation are bound to exist. The fundamental difficulty grows out of the necessary attempt in some way to transform the customer, who enjoys all the incidents and assumes all the risks of owner- ship, into a person who in fact has no right, title or in,rest, and to create out of the broker, who enjoys none of the 'fuel- dents of ownership, and assumes not a particle of its respous- bility, a person clothed with a full title and an alolute owner- ship." We reach the conclusion, therefore, that althoug h the broker ' may not be strictly a pledgee, as undetoed at common law, he is, essentially, a pledgee and not the owner of the stock, - and turning it over upon demand to the customer does not. create the relation of a preferred creditor within the mexning of the bankrupt law. We cannot consent to the contention of the learned counsel for the petitioner, that the insolvency of the broker at once converts every customer, having the right to demand pledged stocks, into a creditor who becomes a preferred creditor when thc contract with him is kept and the stocks are redeemed and turned over to him. In the absence of fraud or preferential transfer to a creditor the broker had a right to continue to use his estate for the redemption of the pledged stocks. As this court said in Cook v. Tullis, 18 Walk 332, 340: "There is nothing m the bankruptcy act, either in its language or object, which prevents an insoR'cnt from dealing with his prolwrty, selling or exchanng it for other property at any time before proeeedin in bankruptcy are taken by or against him, provided such dvalins be conducted without any pur-

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