The opinion of the Court was delivered, by

The plaintiff below was a bidder at a sheriff’s sale of stocks owned by the Bank of the United States, and sold under an execution in December, 1841. He bought all that were sold for the sum of $1200. Among others, were one thousand shares of stock in the Monongahela Navigation Company, which were knocked off to him at $100. In January, 1847, the Bank transferred the same shares of the stock of the Navigation Company to J. B. Moorhead, to whom they were transferred on the books of the company. The Navigation Company refused to permit the transfer to the plaintiff, and for this, which he alleged to be an injury, the present suit was brought. The defence is, that *353the plaintiff held these stocks as a trustee of the bank, and that, at the time of the bank’s sale to Moorhead, they were, in equity, not the property of the plaintiff but of the bank.

The facts in evidence show, most incontestably, that Hemphill bought them for the bank, and that he had no more right to convert them to his own use than any other agent would have to claim the property of his principal. Moreover, he admits in the pleadings that he bought them in trust for the bank. But he attempts to avoid this confessed fact by averring, that before the transfer to Moorhead, the bank had relinquished, released, and for ever abandoned to him all right to the stock. I have said that the trust was incontestably made out. But it seems to us, nevertheless, much' easier to prove that the trust never existed, than to show that it was determinéd previous to Moorhead’s purchase. The Court below was clearly right in saying, that the lapse of time, the insolvency of the bank, the embarrassments of the Navigation Company, and the inaction of the bank, were not evidence of a waiver or relinquishment. These facts taken separately or together, or with the help of everything else that appears in the cause, are wholly insufficient to raise any presumption of abandonment.

If the plaintiff had asserted his right to the stocks, discharged of the trust, and free from all obligation to account for them, and given notice to the bank of his hostile claim, and the bank had taken no steps to resist him for six years or upwards, it may be that its claim would be gone. But that any evidence, less emphatic, would defeat an express and direct trust, such as this was, We are bound to deny, as being contrary to authority as well as principle. Here there was no assertion of the trustees’ own right to the stock, and if there had been, the time that elapsed was not enough to ripen such a claim into a right.

The Court permitted the plaintiff to recover, not only what he had paid for the stock in dispute, but all that he had paid for the other stocks purchased at the same time. If this writ of error had been taken by the other side, the right to recover more than one hundred dollars might have been questioned, though I do not say that it ought to have been. But as it stands, there is nothing in the record of which the present plaintiff in error has a right to complain.

Judgment affirmed.