says: "The holder who does not wish to sell may pledge his certificates for loans and discounts to an amount approximating their market value, with reasonable margin for possible depreciation. The pledgee does not desire to become the owner of the stock, and he would not think it necessary, nor would he have the right to surrender the pledged certificates, and have the stock transferred to him on the books of the corporation." The court here evidently meant that such right did not arise out of the mere act of pledging, and I thing that would be correct, except where the transfer was necessary to the completion of the pledge. A pledgee cannot be the purchaser of the thing pledged, when sold to satisfy the debt (Bryan v. Baldwin, 52 N. Y. 232), and he could certainly have no right to have a transfer made to himself upon the books of the corporation, unless specially granted by the pledgeor. Pledging the shares of stock would not of itself confer the right. McHenry v. Jewett, 90 N. Y. 58, is decisive of that point. In that case shares of the capital stock of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company were pledged by the plaintiff, their owner, to the Erie Railway Company, to secure a loan of money, and by means of certain foreclosure proceedings against that company, they were transferred subject to the plaintiff's right of redemption, to the New York, Lake Erie & Western Railroad Company. The sale under this foreclosure was made in 1878, and since that time the defendant had held the shares nominally as trustee for the last-named company. By what authority they were registered in his name as trustee had not been made to appear. It was not shown to have been done under the authority of the plaintiff in the action. "For that reason," the court said, "the defendant must be regarded as holding the shares solely under the authority as created by the pledge; and having no greater right to make use of or act upon them than the relation of a mere pledge would confer. As between himself and the plaintiff in the action, that continued to be the sole measure of his rights. * * * As the defendant had the shares simply by way of pledge or security for the repayment of money which had been loaned upon them, he could hold them only for that purpose. As long as the rights of the plaintiff to redeem them by the payment of the debt was not extinguished by a lawful sale (Lawrence v. Maxwell, 53 N. Y. 19), they are articles of property, which under such an arrangement, could not be otherwise lawfully used, and under the authorities the defendant had no legal right to vote upon them without the express or implied assent of the plaintiff, the pledgeor. This point was considered in Scholfield v. Bank, 2 Cranch. C. C. 115; Vowell v. Thompson, 3 id. 248; Ex parte Willcocks, 7 Cow. 402. In the last case it was held, that that until the pledge was enforced, and the title made absolute in the pledgee, and the name was changed on the books, the pledgeor should be received to vote; that it was a question between him and the pledgee with which the corporation had nothing to do. Id. 411. These cases are direct and decided authorities against the right of the defendant to vote upon the shares, and the principle sustained by them has in no respect been impaired by In re Barker, 6 Wend. 509, or In re Railroad Co., 19 id. 135; for the disputes which were there made the subject of adjudication did not arise between the parties sustaining the relation existing between the plaintiff and the defendant to this action. It was simply made a question between a person offering to vote, who was registered as trustee of the shares in the first case, and ascribed as cashier in the second, and the corporation, whether such registry of stock authorized the person in whose name it had been made to vote upon it. No point was made in behalf of the party beneficially interested in the shares, and for that reason the cases are inapplicable to the present controversy; for here it has been shown that the defendant, in whose name the shares had been registered as trustee has no greater or other right than that of a pledgee, which under the authorities determining the effect of that relation, will not permit him to vote upon them against the objection of the plaintiff, who is still to that extent entitled to dictate and direct the use which may be made of them." The opinion of the court in the case from which this rather extensive quotation is made was delivered by Judge Daniels, who for nearly twenty-five years past has been upon the bench of the Supreme Court and the Court of Appeals of New York, and whose knowledge of the various decisions of the courts of that State, and ability to discriminate between analogous ones, are not excelled by any jurist. Said opinion was concurred in by Judges Davis and Brady, the former of whom delivered the opinion in Railroad Co. v. Schuyler, 34 N. Y. 41, to which the counsel have referred in their petition apparently with great confidence.* A distinction is made in McHenry v. Jewett, which in the examination of the question under consideration, is liable to be overlooked; and that is the difference in principle between a case where parties claim & right to represent stock, and it is challenged by the corporation, and one where the contention is between parties beneficially interested in stock as to which is entitled to represent it. The corporation might not have any right to refuse to allow a party to be registered as a stockholder in the company, and to participate in the affairs of its business, while another party might very properly object to it as the exercise of unwarranted authority, and a fraud upon its legal rights. A corporation is no such sacred sanctuary as is able to shield those gaining admission to it from the responsibility imposed by law. Getting shares of stock transferred to a person upon the books of the corporation does not preclude the courts from inquiring, when the matter is properly before them, by what right the transfer was made, and what immunities it confers. The records of corporation proceedings are not absolute verity, or conclusive of the right of parties under the law. They may show that a person is a stockholder in the company, and entitled to vote shares of stock when the courts, upon an investigation of the facts, would adjudge the contrary. The question as to who has the right to vote shares of stock must ultimately be determined by law, and as between pledgeor and pledgee, it has been long since established that the right belongs to the former, unless accorded by him to the latter. A stipulation to that effect upon the part of the latter, or from which it would necessarily be implied, would doubtless confer the right; but as said in McHenry v. Jewett, it is a question between the two parties with which the corporation has nothing to do. [Minor points omitted.] NEW YORK COURT OF APPEALS ABSTRACT. APPEAL -WHEN LIES- INTERLOCUTORY DECREE WHAT REVIEWABLE.- (1) The Special Term entered an interlocutory judgment against the defendant. It determined certain matters in controversy, and ordered an accounting. Defendant appealed to the General Term, and asked for a new trial. The motion was denied, and the judgment modified, but it still * An error here. The extract referred to is not from the opinion of the Court of Appeals in 90 N. Y., but from that of the Supreme Court, 26 Hun, 453, which was reversed in 90 N. Y.-ED. provided for the accounting. Held, that it was an interlocutory judgment, from which an appeal was not authorized. (2) Code Civil Pro. N. Y., § 723, provides that the court, in its discretion, may permit amendments to the pleadings which do not substantially change the claim or defense. The General Term, on appeal from an order refusing leave, allowed plaintiffs to amend their complaint. Held, that it was in the discretion of the court, and not appealable. (3) The General Term reversed an order granting a stay of proceedings pending an appeal. Held, that the granting of the order was in the discretion of the court, and is not reviewable. Oct. 25, 1887. King v. Barnes. Opinion by Earl, J. BANK-UNINDORSED CHECK-LIABILITY OF BANK.Plaintiff received a check from the drawer, payable to the maker or order, but not indorsed by him. The check had been certified by defendant bank at the request of the drawer and while in his possession. Held, that as there was no evidence that the maker of the check intended to part with any portion of his deposit to the plaintiff, the defendant was not liable. It is clear that there was no contract made between Wilder and the plaintiff whereby any transfer of the deposit in the bank was intended to be made beyond that which would follow the mere delivery of the check. The action can be supported only by proof that all of the conditions, upon which the authority of the bank to pay the check was made to depend by the drawer have been performed. Freund v. Bank, 76 N. Y. 357. It therefore seems to us that the only question in the case is whether the bank could be made liable to pay to third persons Wilder's funds by any transfer of this check, except one evidenced by the indorsement of his name thereon. It is well settled by authority that the mere drawing and delivery of a bank check to a third person by a depositor does not constitute an assignment to the payee therein named of the fund held by such bank. Bank v. Bank, 46 N. Y. 82; Bank v. Hughes, 17 Wend. 94. A check is analogous to a bill of exchange, and a bank cannot be made liable thereon, except by its acceptance indorsed upon it in writing. Risley v. Bank, 83 N. Y. 318. An acceptance of the check however was made by the bank, we think, when through its agent, it indorsed thereon a certificate of geuuineness, and directed its payment by the American Exchange National Bank. That operated as a promise to pay it upon presentation at the American Exchange National Bank, bearing Wilder's indorsement. The obligation of the bank as shown thereby amounts to a representation that the drawer has funds in the bank with which to pay the check, and that it will retain and pay them to the holder by its agency in New York upon its presentation there bearing the indorsement of the drawer. Bank v. Bank, 14 N. Y. 623; 16 id. 125; 28 id. 425; Bank v. Bank, 67 id. 458, 460; Clews v. Bank, 89 id. 418. Such a contract the bank had a right to make, limiting its liability to an order properly indorsed by the depositor, or his payor, and the depositor had the right to impose upon the bank the condition that his money should be paid out by it only upon a check indorsed by himself or its payee. If the bank should disregard such a requirement, it would do so at its own risk; but the holder has no legal right to impose such a liability upon it against its consent. It would certainly add much to the hazard of the transmission of funds by check, draft or otherwise, through the mail or express, if the banks or agencies upon which they were drawn should be compelled to pay them to the holder by an action at law, where they do not bear upon the face the evidence of the performance of the condition upon which the drawer has authorized their payment. The relation existing between a bank and its depositors is that of debtor and creditor. and the bank holds the funds subject to be paid out upon the direction of the creditor according to the terms and conditions imposed by him. Bank v. Bank, 46 N. Y. 82; Crawford v. Bank, 100 id. 56. The bank's protection in the payment of checks consists in the fact that is has followed strictly the depositor's directions in disbursing his funds. Where a depositor has imposed the conditions that his check shall not be paid unless it bears his indorsement, the depository, if it pays it to a holder without such indorsement, runs the risk of the transaction, and takes the burden of showing that such holder has acquired in some way the lawful title to receive the funds. It may successfully defend such a payment, if it can show that it made it to a person who, as against the drawer, was legally entitled to receive it, for in that event the drawer would suffer no damage thereby. It was held in Risley v. Bank, 83 N. Y. 318, that a parol contract by a depositor for the transfer of the whole or any part of his deposit is valid in law, and invests the transferee with the right to sue for and recover the amount of such deposit, or such part thereof as was intended to be transferred. It was also held in the same case that a depositor might, concurrently with the delivery of a check to a third person, enter into such a contract by parol as would transfer the fund represented by the check to the person named therein. In such a case the liability of the depository is not predicated upon the check, but that is used in connection with the parol agreement as evidence of the contract transferring the debt. Bank v. Bank, 21 N. Y. 490; Risley v. Bank, supra. The action arises upon the contract of assignment, and not upon the check. Oct. 18, 1887. Lynch v. First Nat. Bank of Jersey City. Opinion by Rapallo, J. CRIMINAL LAW-INDICTMENT-SUFFICIENCY-MATTERS OF FORM.- Code Crim. Pro. N. Y., § 285, provides that "no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected, by reason of an imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Defendant was charged with perjury in swearing to a statement of the condition of a bank of which he was cashier. The indictment set out the statement and verification in full; specified portions of the report; and charged that defendant knew they were not true; but nowhere in direct terms, alleged that the statements in connection with which perjury was charged were untrue. Held, that the indictment negatived, in substance, the facts which the defendant swore to, and that it was error to discharge him. Oct. 18, 1887. People v. Clements. Opinion by Rapallo, J. DURESS MORTGAGE-THREAT OF CRIMINAL PROSECUTION-STATUTE OF LIMITATIONS-ACTION TO QUIET TITLE-CODE N. Y., § 382.- (1) A mortgage was given to certain persons by reason of the threats of the latter, that unless it were given, they would send the son of the mortgagor to prison for a crime which he had committed. After the giving of the mortgage, the prosecution previously instituted against the son was dismissed. Held, that the mortgage was invalid, and should be canceled, as a cloud on the title. (2) An action to remove a cloud from the title to real property created by an invalid mortgage is not barred by Code N. Y., § 382, subd. 5, which applies a six-years' limitation to "actions to procure a judgment other than for a sum of money on the ground of fraud, in a case which on the 31st day of December, 1846, was cognizable by the court of chancery." Oct. 11, 1887. Schoener v. Lessauer. Opinion by Rapallo, J. EXECUTORS AND ADMINISTRATORS -LIABILITY COSTS.- (1) Where an action is brought in the name of the executor, for a conversion of his testatrix's personal property, and other interests besides his own personal interests are involved, and his duty requires the executor to bring such action in his official capacity as executor, and no mismanagement or bad faith appears on the part of the executor, the estate which he represents, and not he personally, is chargeable with costs, if the action is unsuccessful. (2) When'in such an action the costs are charged by the trial court against the plaintiff as executor of the last will and testament of" his testatrix, it is an adjudication that they are not to be charged against the executor personally, but only in his representative capacity; and no collateral attack thereon can be made. Oct. 4, 1887. Hone v. De Peyster. Opinion by Ruger, C. J. JUDGMENT-REVIVOR AGAINST DECEDENT'S ESTATE -LIMITATION OF ACTIONS PRESUMPTION OF PAYMENT-DEATH OF JUDGMENT DEBTOR - ACKNOWL - thereon, which was done. This petition was filed in November, 1884, asking that the last order be set aside, and that the receiver be ordered to pay the amount of the judgment obtained by petitioners against the mortgagor. Held, that the judgment in the action between the receiver and petitioners in 1883, for the possession of the plates, was res adjudicata as to the point involved, and that the petitioners were guilty of laches by their long delay. Oct. 4. 1887. Sullivan v. Miller; In re Petition of Little v. Ames. Opinion by Ruger, C. J. MARRIAGE -CONTRACT BETWEEN HUSBAND AND WIFE - CONTINGENCY OF SURVIVORSHIP — ESCHEAT,— CONSTITUTIONAL LAW — TITLE OF STATUTE.—(1) A contract was made between a man and woman previous to their marriage, that if the man died first without issue by the marriage, the woman should have all of his property, and if the woman died first without issue by the marriage the man should have all of her property. The husband died without issue of the marriage, but leaving a number of legal heirs, aud soon after the wife died, leaving no heirs whatever. Held, that the contract was valid, and upon the death of the husband, the wife took an equitable interest in his property, and upon her death without heirs the equitable interest and a right to a conveyance of the property reverted to the State. (2). The property of a person dying intestate and without heirs, in the State of New York, reverts to the State as ultimus hæres. (3) Laws N. Y. 1885, chap. 377, entitled "An act to release the interest of the people of the State of New York in certain real estate to Henry Spicer, Catharine Valentine, Georgiana Farrington, Sarah F. Chapman and Charles Spicer, and for other purposes," is invalid as in violation of Const. N. Y., art. 3, § 16, providing that "no private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title." Oct. 18, 1887. Johnston v. Spicer. Opinion by Ruger, C. J. EDGMENT OF INDEBTEDNESS. (1) A judgment recovered against an intestate, and upon which no payment has been made or acknowledgment of a continuing indebtedness given, cannot on presentation to the administrator at a period of more than twenty years after its rendition, be revived by him against the creditors or next of kin of the intestate. (2) A judgment recovered on May 29, 1863, against one who died January 9, 1883, was presented to his administrator for payment on March 27, 1884. No acknowledgment or payment had been made by the intestate. Code Civil Proc. N. Y., § 403, provides that "the term of eighteen months after the death, within the State, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator." Held, that this section does not extend the time after which a judgment is presumed to be paid under section 376, which declares that such presumption shall arise, and be conclusive, in the absence of a part payment or acknowledgment, at the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. (3) Executors petitioned that a judgment recovered by their testator against an intestate be decreed to be paid, and the administrator in his answer set up that another judg-premises, and in default thereof that it should be law ment was entitled to priority over the petitioner's judgment. Held, not to be such an acknowledgment that such other judgment was a subsisting claim against the estate as to rebut the presumption of payment arising under the statute of limitations. (4) The petition for the judicial settlement of an administrator's account set forth, as required by Code Civ. Proc. N. Y., § 2729, the names of the persons interested in the estate of the deceased, as creditors, etc., and named "W., a judgment creditor of the deceased," without specifying the amount of the judgment, the date of its recovery, or that any amount was due thereon. Held, not to be such an acknowledgment that the W., judgment was a subsisting claim against the estate as to rebut the presumption of payment arising under the statute of limitations. Oct. 11, 1887. In re Kendrick. Opinion by Rapallo, J. EFFECTRES ADJUDICATA.- Certain stereotype plates were mortgaged in July, 1882, but this mortgage was not filed until January 4, 1883, upon which date the mortgagor made an assignment. In March, 1883, petitioners obtained a judgment against the mortgagor for an indebtedness incurred after the mortgage was given, and levied upon these plates, which were already in their possession. The receiver who succeeded the assignee brought action for the possession of the plates, and obtained them from petitioners in July, 1883. On March 15, 1884, the court ordered the receiver to sell the plates for not less than a specified sum, and pay off the original mortgage MORTGAGE-COVENANT TO PAY TAXES BREACH.A mortgage contained a clause that the mortgagor should pay all taxes, charges and assessments which may be imposed by law, upon the said mortgaged ful for the mortgagee to pay the amount of any such charge, with any expenses attending the same. Any amount so paid, the mortgagor covenanted to repay. Held, that under the clause, this mortgagee could recover an amount paid by him to an expert tax examiner, who had examined and obtained a reduction of the taxes imposed on the premises which the mortgagor had failed to pay, and that a tender by the mortgagor of the amount dne on the mortgage, less the sum so paid to the expert, was not sufficient as a defense to a foreclosure suit. Oct. 25, 1887. Equitable Life Assur. Soc. of the United States v. Von Glahn. Opinion by Earl J.; Danforth, J., concurs in result; Ruger, C. J., not voting. MUNICIPAL BONDS - FOR RAILROAD AID INVALIDITY- - COMPLIANCE WITH STATUTE-EXTENSION OF TIME LIABILITY FOR PUTTING ON MARKET - CONSTITUTIONALITY.—(1) Defendant and others pretended to form a railroad corporation under the general railroad law, and procured bonds from plaintiff village to aid in the construction of their line of road. Defendant procured possession of such bonds as acting president of such pretended corporation. The pretended railroad company never began the construction of its proposed line of road. Held, that under act of 1867, chap. 775, which provides that if any corporation formed under the general railroad law shall not within five years after its articles of association are filed and recorded in the office of the secretary of State, begin the construction of its road, and expend thereon ten per cent of the amount of its capital, its corporate existence shall cease, such corporation ceased to exist at the end of five years from the time of filing and recording its articles of association, and at that time the bonds of plaintiff village became void in the hands of such corporation or its agents. (2) An alleged railroad corporation never began the construction of its line of road, and its corporate existence ceased by operation of law in February, 1875. Held, that the act of 1875 (Laws 1875, chap. 598), passed June 18, 1875, which provides that a railroad corporation that had not completed its line of road in the time limited by law might have two years more in which to finish the construction of its line, did not apply to a corporation which had not begun the construction of its line, nor did it revive defunct corporations. (3) After the corporate existence of an alleged railroad corporation has ceased by failure to comply with the law regulating such corporations, defendant, an officer of such defunct corporation, and knowing its condition, and having in its hands bonds given by plaintiff village to such corporation, and knowing that such bonds were void, and could not be enforced by such corporation, fraudulently sold them to innocent parties, representing them to be bona fide securities, and valid bonds of plaintiff village. Held, that defendant, by his fraud, became liable to plaintiff for the value of the bonds negotiated by him. (4) Defendant and others pretended to organize a railroad corporation, but did not comply with any law governing the formation of such corporations, but by the perjury of defendant and two others, a seeming compliance with law was had. Bonds were issued by plaintiff village to such supposed corporation, and defendant came in possession of them as an officer of such alleged corporation, and sold them to innocent parties, representing them to be valid and binding upon plaintiff, and thereby became liable to plaintiff for the value of the bonds so negotiated. Held, that the fact that defendant accounted to the alleged corporation for the proceeds of the bonds did not release him from his liability to plaintiff. (5) Laws 1880, chap. 577, passed June 22, 1880, provides for the release of the Attica & Arcade Railroad Company from the forfeiture of its charter by reason of its failure to begin the construction of its road, and expend thereon ten per cent of its capital within five years after its articles of association were filed and recorded in the office of the secretary of State, and also by reason of its failure to finish said road and put it in operation within ten years from so filing and recording its articles of association. It also provides that said company shall possess all the powers and rights it would have possessed if its acts and proceedings had been in conformity with law, and authorizes said company to construct its road with a three-foot gauge. Held, that said act is unconstitutional, being in conflict with § 18, art. 3, of the Constitution of 1875, which prohibits the Legislature from passing any local or private bill granting any corporation, association, or individual the right to lay down railroad tracks. Oct. 18, 1887. Farnham v. Benedict. Opinion by Rapallo, J.; Earl, Danforth and Peckham, JJ., concur; Ruger, C. J., Andrews and Finch, JJ., not voting. NEGLIGENCE EMPLOYMENT OF SHIP SURGEON. (1) Where a surgeon is selected for duty on shipboard, the ship-owners are bound only to the exercise of reasonable care and diligence in the selection of a competent person for the position, and are liable, not for the negligence of the surgeon, but only for their own negligence in making the selection. (2) Where, in an action by a passenger against a steam-ship company for damages caused by the alleged improper and negligent treatment by the ship surgeon of an injury MORTGAGE BONDS RIGHTS OF HOLDERS.- (1) Where a statute creating a corporation, and authorizing it to build a railroad, provides that if the corporation shall not begin construction within a certain time, the corporation shall be dissolved, such failure does not ipso facto dissolve the corporation. (2) Defendant, a railroad corporation, organized under the New York act of 1858, chap. 140, § 5, had power under Laws 1839, chap. 218, "to contract with any other railroad corporation for the use of its road," and operate a road in New York running to the borders of Vermont. Another corporation had been created by a law of Vermont, with power to build a road in Vermont, and to lease its road. The Vermout corporation, before building its road, entered into an agreement with defendant and others by which, after reciting, that with a view to establish all rail routes between the west and northern New England, and to form necessary connections fer that purpose, a new road must be built in Vermont, it agreed to issue bonds to build the new road, the others agreed to buy them for that purpose, and the New York corporation agreed, on the completion of the new road, to take a perpetual lease of it in form prescribed by the agreement. The agreement was performed, and a new agreement, purporting to be a lease and in the prescribed form, was executed, covering the new road, and all rights and tangible property of the Vermont corporation. Under the lease defendant was to equip, maintain and operate the new road, and to pay the bonds in fifty years. Held, that the new agreement was a valid lease, and not ultra vires, as to the New York corporation, and was not a lease of an incomplete road. (3) Defendant, a railroad corporation, executed a mortgage reciting its determination to issue two classes of bonds, viz., "first consolidated mortgage bonds," and "income mortgage bonds," payable forty years from April 1, 1880, with interest payable semi-annually on the first mortgage bonds, and annually on the income bonds, but only the principal of the income bouds was to be secured by the mortgage. The interest on the income bonds was payable out of defendant's" net earnings," and both the income bonds and the accompanying interest coupons provided that the term "net earnings' signifies the amount remaining of defendant's income during each annual interest period after discharging certain specified expenditures, and that defendant's directors should determine the amount of the "net earnings" in each period. The mortgage showed that the promise for interest on the income bonds was subject to a condition that defendant's net earnings for each period after satisfying the aforesaid expenditures, should suffice to pay the interest on all of this class outstanding at the specified dates following each of said periods, or such less interest as such net earnings during such periods should be sufficient to pay on all said bonds then outstanding. The mortgage contained other provisions further evincing defendant's intent not to secure the interest on the income bonds by the mortgage, and covered defendant's income and profits. After executing the mortgage, defendant leased a road from a Vermont corporation, agreeing in the lease to pay certain bonds issued by the latter, and has been paying these latter bonds, but not the interest on the income bonds. Plaintiffs are holders of coupons for interest on the income bonds. Held, that plaintiffs have no lien under the mortgage, and that defendant's directors have the right to determine the amount of the net earnings, and plaintiffs are bound by such determination, and cannot maintain an action to restrain defendant from using its income to pay the Vermont corporation's bonds or operating expenses. Oct. 11, 1887. Day v. Ogdensburg & L. C. R. Co. Opinion by Danforth, J. RECEIVER- OF RAILROAD COMPANY- -POWER TO CONTRACT DEBTS EQUITY JURISDICTION -SALECONSOLIDATION OF CORPORATIONS.- (1) A railroad company executed first and second mortgages on its property. Afterward it was put into the hands of 8 receiver, who petitioned the court for power to buy some necessary rolling stock on credit. Held, that in order to secure the successful operation of a railroad in its possession, a court of equity has jurisdiction to authorize its receiver to create debts, and to charge them as a first lien on the property. (2) A receiver's expenditures, before they can be charged on the property, must be authorized by the court; and while expenses for preserving the property incurred by a receiver without the prior sanction of the court may be allowed by the court to be charged upon the fund, it is nevertheless the order of the court, and not the act of the receiver, which creates the charge. (3) The court issued an order authorizing the receiver to buy the necessary rolling stock for a railroad, provided that he could do so upon a credit of not less than six months. The order further provided that "the amount which said receiver may so contract to pay for the said rolling stock, together with all interest that may accrue thereon, is hereby made a first lien on said mortgaged premises, and all proceeds thereof." Held, that the effect of the order was to charge both the property and the proceeds from its sale with the lien. (4) In February, 1857, a receiver was appointed to take charge of a railroad. In the following September it was sold under a decree of the court, but the purchasing committee who bought it did not complete their purchase until 1868. Held, that until the sale was completed, the court was not divested of its power of managing the property. (5) A director of railroad had bought, at an execution sale, the rolling stock of the road. Subsequently he released the stock to a receiver of the road, and made an agreement with the receiver, which provided that in case it should be determined by this or in any other action or proceeding that the said property belonged absolutely and beneficially to him, he should be paid for the foregoing release $18,000. Held, that this agreement fixed the price of the rolling stock at $18,000. (6) Plaintiff, a director of a railroad, purchased its rolling stock at an execution sale, and afterward released it to a receiver who has been appointed to take charge of the road. It was agreed between them that plaintiff was to be paid $18,000 and interest, when it was finally determined that he had an absolute and beneficial title to the rolling stock. Subsequently an action was begun to foreclose two mortgages on the property of the railroad, and in that proceeding it was determined that plaintiff by his purchase secured a legal title to the rolling stock. Held, that the judgment of the Court of Appeals satisfied the condition of the contract in respect to plaintiff's title to the rolling stock. (7) An agreement was made between plaintiff and a receiver of a railroad, whereby under certain conditions, plaintiff was to have a lien on the road. This agreement was consented to by the ropresentatives of a purchasing committe appointed to buy the road. The purchasing committee had notice of this fact. The conditions were fulfilled, and plaintiff's lien established. At a foreclosure sale the road was bought by the purchasing committee for its principal, the purchasers of the road. Held, that the purchasers of the road were not purchasers for value without notice, and that they took the property subject to plaintiff's lien. (8) The purchasers of a railroad who had notice of plaintiff's lien on the road organized a railroad company, and transferred their title to the road to the company in exchange for its stock. Held, that the railroad company having paid no value for the property, and representing simply the purchasers who had notice of plaintiff's lien, took the property subject to that lien. (9) The purchasers of the first mortgage bonds of a railroad agreed with the sellers that they would form a corporation which should acquire the title to the rolling stock, etc., and all the property belonging to the railroad which might be subject to the claim of one V.; and further that "the purchasers are to assume the prosecution of that suit, (the V. branch), and to abide its results and judgment; and if there shall be any recovery in V.'s favor, the purchasers agree to indemnify said parties of the first part, and said Platt, as receiver against the same." Held, that this was a contract strictly of indemnity, which contained to promise to pay V., and was not made for his benefit; and that he was not entitled to a personal judgment against the purchasers. (10) Plaintiff released certain rolling stock to a receiver under an agreement that in case it chould be finally determined that he had an absolute and beneficial title to the property, he should paid $18,000 and interest, and that the money and interest should be charged as a first lien on the whole property. In an action to foreclose two mortgages on the property. the Court of Appeals decided that plaintiff had a legal title to the said rolling stock, and awarded costs in his favor. Held, that the costs adjudged in plaintiff's favor, in the foreclosure suit, were not included in his agreement with the receiver, and could not be charged as a lien on the property. (11) Under Laws N. Y. 1869, chap. 917, § 5, authorizing the consolidation of certain railroad companies, and providing that the rights of creditors and liens were not to be impaired by the consolidation, a railroad company which had notice of plaintiff's lien on the road consolidated with another company. The property of the consolidated company was leased to a canal company. Held, that neither the new company which was formed by the consolidation, nor its lessee, the canal company, was as regards said lien, a purchaser for value without notice. Oct. 4, 1887. Vilas v. Page. Opinion by Andrews, J. SCHOOLS OF SCHOOL FUNDS.- Under Code Civil Proc. N. Y., $$ 1927, 1929, 1931, providing that trustees of schooldistricts shall be individually liable for judgments recovered against them on contracts made by them in their official capacity, a judgment so recovered may be collected from their individual property, and a writ of mandamus will not be granted to enforce the payment of such a judgment out of funds belonging to a school-district in the hands of its trustees. Oct. 18, 1887. People, ex rel. Wallace, v. Abbott. Opinion by Andrews, J. CONTRACTS OF TRUSTEES LIABILITY ABSTRACTS OF VARIOUS RECENT DECISIONS. BAILMENT-DEPOSIT-ORDINARY DILIGENCE - - USE BY BAILEE.-Where a bailee for hire allows money to be deposited in his safe for safe-keeping, and without his fault to safe is robbed, the owner must bear the ioss. In such a case, if the bailor consents to the use of the money by the bailee, if such robbery occurs before there has been such use of the money the bailor |