Conger a. The Hudson River R. R. Company. plaintiff or defendant personally, for mismanagement or bad faith in such action or defence. If these parties are trustees of an express trust, they cannot be liable, unless the court had decided that they had been guilty of mismanagement or bad faith, which has not been determined. It was held in Cunningham a. McGregor (5 Duer, 648), that an assignee in trust to pay creditors, was a trustee of an express trust, and could not be charged personally, except upon the ground of mismanagement or bad faith, which was not there shown. The terms of the assignment do not appear in the report. In the present case, the trust is primarily to pay all notes, bonds, or debts which Williams and Everett are bound to pay for the assignor, or have guaranteed. This creates a trust in favor of the holders of all such secured paper, which they could enforce. (4 Johns. Ch. R., 136.) There, perhaps, may be a case in which the provisions of an assignment, though enuring for the benefit of others, render the subject of the action so fully the property of the assignee, as to bring the case within section 321. It is sufficient to say, that the present is not one of that character. We think the order was erroneous, and must be reversed, but without costs. It is needless to discuss the other objections taken by the counsel of the appellants. Higby a. The New York & Harlem R. R. Co. HIGBY a. THE NEW YORK & HARLEM R. R. CO. New York Superior Court; General Term, October, 1858. EVIDENCE.-PAYMENT.-RECEIPT. Receiving the note of an agent in settlement by him of his principal's indebtedness is not in itself payment, even though the agent was at the time largely indebted to the principal, and had charged the principal, on account of that indebtedness, with the amount of the note. To make the receipt of such note operate as payment, the principal must show that there was an agreement to take it as actual payment. A receipt in full for the debt, given on the delivery of the note, is not sufficient to establish such an agreement. It is only prima facie evidence of such agreement. Appeal from a judgment entered on the report of a referee. Stewart & Baylies, the plaintiff's assignors, contracted with the defendants to grade the track of their road at certain prices, payable monthly, upon the estimate of the engineer. Nine estimates had been paid at the offices of R. & G. L. Schuyler, which offices were hired by the Messrs. Schuyler, and the defendants were charged with a portion of the rent, and had their office in one of the rooms thus hired. The office of G. L. Schuyler, as President of the Harlem Company, was in the same office. Stewart & Baylies, having completed the work upon Estimate No. 10, presented said estimate at the office for payment, where the estimates were uniformly paid. The cashier of R. & G. L. Schuyler told Mr. Baylies that there was not money enough on hand to pay the full amount, and proposed to pay $3186.70 in cash, and to give the note of R. & G. Schuyler at thirty days for the balance, which was $3500. Mr. Baylies said that if the company had not the money he would take a note for the balance, with interest added. The note was given, and at the foot of the Estimate No. 10 the following receipt was given: "Received, New York, June 27, 1854, from George L. Schuyler, President N. Y. & Harlem R. R. Company, sixty-six hundred and eighty-six dollars and seventy cents. For Estimate No. 10, June 20, 1854. Double Track from Allen's Bridge to White Plains. "$6686.70. (Signed) STEWART & BAYLIES." Higby a. The New York & Harlem R. R. Co. The note was protested and has not been paid, and the plaintiffs offered to surrender it to the defendants. This action was brought to recover the unpaid balance of the estimate. The defendants insisted that it was paid by the note, and showed that at the date of the note the Messrs. Schuyler were indebted to the company upwards of $200,000, and that they charged the company with the whole amount of the said receipt. The cause was tried before a referee, and judgment entered on his report for the plaintiff, and the defendants appealed to the general term. C. W. Sandford, for the appellants. Sandford & Emerson, for the respondent. BY THE COURT.*-PIERREPONT, J.-Stewart & Baylies having done their work, the amount claimed in Estimate No. 10 was due. It has not been paid in money, nor has it been released by any formal instrument. The defendants have received the consideration upon which this action is founded, and for it they have paid nothing. The fact that Schuyler charged the Company with this note makes no difference in the present case; he was their debtor to a large amount at the time, and they parted with no new consideration in consequence of such charge. To make the receipt of Schuyler's note operate as payment pro tanto, it was necessary for the defendants to show an agreement to take it as actual payment. Merely taking it and giving a receipt in full is not alone sufficient to establish such agreement. (Toby a. Barber, 5 J. R., 70; Johnson a. Weed, 9 Ib., 310; Noel a. Murray, 3 Kern., 168.) The facts, therefore, are correctly found by the referee, and he has drawn therefrom a just conclusion of law. The receipt given did not preclude an inquiry into the agree ment actually made, in respect to the terms on which the note was taken, and it follows that what Vandervent said at the time. on that point was competent evidence. (Johnson a. Weed, supra.) The terms of the agreement, if one was made, are to be determined upon a just consideration of what the parties to the transaction said at that time. There was no error in the admission of the evidence. Judgment must be affirmed, with costs. *Present, BosWORTH, C. J., HOFFMAN and PIERREPONT, JJ. Wells a. Smith. WELLS a. SMITH. New York Superior Court; Special Term, September, 1858. CONFLICTING CLAIMS BETWEEN CO-PLAINTIFFS or Co-defendants. A stockholder whose scrip has been stolen may maintain against the corporation and a person who holds the stolen scrip, an action to establish his right to it. The provision of section 274—that the judgment may determine the rights of the parties on each side between themselves-is to be taken in connection with that of section 118, that any person may be made a defendant who has, or claims, an interest in the controv rsy, adverse to the plaintiff, or who is a necessary party to a complete determination of the questions involved therein; and it is only in those cases and in the manner in which the conflicting claims of codefendants could be settled in the action, according to the practice of the Court of Chancery, that they can be settled under the Code. In what cases this can be done, considered. Application for an injunction. The action was against Wells, Fargo & Company, and one Smith, the holder of a certificate of certain stock in that company, of which plaintiff claimed to be the true owner. HOFFMAN, J.-The case made is, that the plaintiff was owner of a certificate declaring him entitled to ten shares in the stock of the company, an organized association, and in some respects a corporation, under the name of Wells, Fargo & Co.; that such certificate, with a power in blank, was stolen from him; that the holder had obtained another upon surrender of that purloined from the company, which had come to the hands of the defendant Smith; that he was demanding the dividends, and threatened to sell his certificate. An injunction is sought against the company from allowing any further transfer, or from paying the dividends to Smith. The complaint seeks to compel the company to replace the plaintiff on its books as a stockholder, to issue a fresh certificate to him, and pay him the dividends. Relief is sought against Smith, to compel him to surrender his certificate, and an injunction to restrain him from receiving the dividends; and also from further prosecuting an action which he has commenced in this court against the company. 1st. Smith, as assignee or holder of the stolen certificate and . Wells a. Smith. power, has no demand which he can sustain in opposition to the plaintiff. He could acquire no better right than the thief possessed. The company, with knowledge of the facts, could not be compelled to recognize him as a stockholder. Perhaps the plaintiff could compel the surrender of the stolen certificate. (New Haven R. R. Co. a. Schuyler and 324 defendants, Court of Appeals, 7 Abbotts' Pr. R., 41.) I do not see at present an objection to the action being against Smith and the company, to attain all the relief sought. I apprehend, that under the prin ciples of the case referred to, and other authorities, the holders of the genuine stock of the New Haven Company, or some on behalf of all, could have sued the directors, with the alleged holders of fictitious stock, and attained the same object. Therefore, the injunction as absolutely granted, seems to me right, the theory of the case being, that the plaintiff and Smith equally claimed the right to the particular stock. 2d. But Smith brought an action against the company before the present suit was commenced. And there is an order to show cause now before me, why he should not be restrained from prosecuting this action. Although his complaint is strictly framed upon the ground of an actual and exclusive ownership of the identical stock in question; yet he may, perhaps, make a case under it of a claim upon the company by reason of a rep resentation of the validity of the certificate, upon the faith of which he paid his money, when he exhibited the new certifi cate. Now a claim of this nature is perfectly consistent with the establishment of the plaintiff's claim to have the stock replaced. It will subject the company to a loss in damages, and I assume that the corporation may make itself so responsible. (Davis a. The Bank of England, 4 Bing., 383.) Whether what is sworn to have taken place here will suffice, is another question. It is strenuously pressed by the plaintiff's counsel, that perfect relief can be given to all parties, and every claim adjudi cated under section 274 of the Code in his action, and that the defendant Smith ought to be compelled to litigate in this suit. The counsel of the company unites in this view. The clause of section 274 referred to is, that the judgment may determine the ultimate rights of the parties on each side, as between themselves. |