6. Where the allegation was, that the
corporation was indebted to S. & S.
(under whom the plaintiff claimed)
for work, labor and services per-
formed by them, who were copart-
ners, "doing the business of con-
tractors" with the corporation, for
the construction of some part of its
rail road track; Held, on demurrer,
that the complaint was defective in
failing to show that S. & S. belonged
to the class of "laborers and serv-
ants" who are authorized by the
statute to sue the stockholders, for
services performed for the corpora-
ib
tion.

3. Obligation to build or complete road.
7. It seems that no positive obligation

to build a rail road, either in whole
or in part, rests upon the company
from its having obtained a charter
for that purpose. Nor can any clear
and imperative obligation to com-
plete the entire route of a road be
deduced from the fact that the com-
pany has completed a portion of it.
People v. Albany and Vermont Rail
Road Company,

4. Right to abandon road.

216

8. The question of abandonment is
somewhat different from that of
construction. The right to abandon
does not inevitably result from the
right not to build. People v. Alba-
ny and Vermont Rail Road Com-
216
pany,

9. It may be that a rail road company,
having accepted a charter, obtained
subscriptions to the stock, acquired
the right of eminent domain, pro-
cured an assessment of damages on
the faith of completing the road,
finished the road, put it in opera-
tion, exacted tolls and fares, divert-
ed travel, and assumed to become
common carriers of passengers and
merchandise, has also incurred some
obligations to the public which it is
bound to fulfill. The public must
have some rights. Per HOGEBOOM, J.
ib

10. Yet it is not by any means clear
that a rail road company has not the
right to abandon its whole road, if it
elects to do so. Per HOGEBOOM, J.

ib

11. But the right to abandon a part
of a road necessary to the preserva-
VOL. XXXVII.
45

tion of an unbroken line of rail
road communication, if it exists, is
not absolute and unrestricted, but
may,
in a proper case, be interfered
ib
with or controlled.

RECEIVER.

3. Rights and duties of the receiver of

an insolvent bank, in cases of mu-
tual claims between the bank and
parties dealing with it; 1. Where, at
the time of the appointment of the
receiver, debts exist owing to, and
owing by the bank, and both due;
2. Where such debts exist, but on
the one side or the other the debt
has not become due, and particu-
larly where the debt from the dealer
or customer, to the bank, has not
matured; 3. Where the demand is
unliquidated; 4. Where the debt
due to the bank is from a firm, or
from several persons jointly, and the
debt due from the bank is owing to
only one or more of such persons,
and not to all. Herein of the right
ib
of set-off.

REFEREE.

1. It seems there are only two ways in
which the report of a referee can
be reviewed, upon a reference to
settle claims made against execu-
tors and administrators. One is by
an appeal to the general term di-
rectly from the judgment on the re-
port of the referee, and upon a case,
or case and exceptions making a
part of the record. The other is by
a motion for a new trial, at the spe-
cial term, by way of opposing the
motion made to confirm the report.
Coe v. Coe,
232

2. The sheriff's liability for the acts
of his deputy in the execution of
process, rests upon the doctrine of
principal and agent; and in all such
cases, it is essential to prove the
agency, upon the trial, if the fact is
denied by the answer.
ib

3. The authority of the deputy to act
as the agent of the sheriff, and to
bind him by his acts, can only be
proved by the production of his ap-
pointment as deputy, by the sheriff,
in writing, under his hand and seal.
It cannot be proved by a certified
copy of such appointment; nor by
evidence that the deputy acted as
such

ib

4. The general principle that the acts
of officers de facto are as valid and
effectual, when they concern the
public or the rights of third persons,
as though they were officers de jure,
does not embrace such a case. Nor
can it be applied to establish the
liability of a sheriff for the wrong-
ful acts of another, claiming to act
as his deputy.
10

See BOND, 2, 3, 4.

SHIPS AND SHIP OWNERS.

1. Where the owner of a vessel char-
ters the same to the master, for a

2. The defendant, in such a case, has
a right to have the question of dam-
ages tried by a jury; of which right
the justice at special term cannot
deprive him, by a compulsory ref-
erence to a referee; particularly
where the fact that the defendant
never had title, and was not and
never had been able to specifically
perform, is set up in the answer.
ib

STATUTES.

See BROOKLYN, (CITY OF,) 1, 2, 3.
RAIL ROADS, 1 to 14.
TAXES AND TAXATION.

STOCKS.

See TAXES AND TAXATION.

The act of congress of February 25,
1862, exempting such stocks from
taxation, is valid, so far as it relates
to all stocks, bonds, and other se-
curities issued by the United States
after the passage of the act. ib

3. Such securities are not subject to
taxation under the state laws.
CLERKE, J. dissented.

4.

ib

1. A trustee, who holds the title to

property by conveyance from a
debtor or borrower of money, in
trust to secure a creditor or lender,
where no compensation is provided
in the conveyance, and no service is
performed, or liability incurred, by
the trustee, under his powers in the
deed, and no request to act as trus-
tee is made by the borrower, can
have no recourse to the borrower or
debtor by action for commissions
or compensation, although the trus-
tee accepted the trust, if the orig-
inal demand so secured has been
voluntarily paid by the debtor, with-
out any resort to the security. Wet-
more v. Brown,
133

grain as it was put on board the
vessel. The plaintiffs' agent, on re-
ceiving from the measurer his cer-
tificate of quantity, and the "half
bill" for measuring the grain, sent
them, together with the plaintiffs'
own bill for the price of the grain,
to the purchasers, M. & R., who sent
back their check for the amount,
which was not paid. A custom ex-
isted in the city of New York, at
the time, whereby the holder of the
"half bill" of the measurer of grain
shipped for transportation is enti-
tled to a bill of lading for the grain
mentioned therein, on the produc-
tion of such." half bill" to the
agent or owner of the vessel. M.
& R. presented the measurer's "half
bill" to the owners of the vessel,
and obtained a bill of lading, in
their own names, which they as-
signed to M. & Sons, as collateral
security for an advance of money.
Held that there was a voluntary de-
livery of the grain, by the vendors,
to M. & R., although the price had
not been paid; and that M. & R.
became the possessors thereof in
such a manner that all persons deal-
ing with them respecting the grain,
in good faith, were entitled to be
protected.

ib

1. Where the owner voluntarily de-
livers the possession of merchan-
dise to a vendee, subsequent bona
fide purchasers from such vendee,
and those incurring liabilities and
making advances on the faith of
such possession, or standing in the
relation of bona fide purchasers, are
entitled to protection against the
claims of the former owner, al-
though the sale be conditional and
the purchase price has not been
paid. Western Transportation Co. 5.
v. Marshall,
509

2. So, also, evidence or indicia of the
ownership of merchandise, in writ-
ing, transferred by assignment or
delivery, as the nature of the in-
strument or usage may require, may
be sufficient evidence of the sale
and delivery of merchandise. ib

3. A quantity of grain was delivered
by the plaintiffs, from a canal boat,
on board a vessel, at the port of
New York, for the account of M.
& R. as purchasers, to be paid for
by them in cash, on delivery. A
measuring officer measured the

False statements made to a stranger,
without any intent to influence the
conduct of the plaintiff, cannot be
made the pretext for avoiding a
sale made by the plaintiff himself.
PECKHAM, J. dissented.
ib

The plaintiffs sold to B. a quantity
of spirits of turpentine, to be paid
for in cash on delivery, and B. sold
the same to W. The plaintiffs, by
order of B., caused the property to
be shipped on board a vessel of
which the defendant C. was maste.
taking receipts therefor, which the
continued to hold. W., without hav
ing paid for the property, and with-
out any actual possession or indicia