plaintiffs that the custom of some of Jndgment of general term, affirming these persons had been solicited by judgment for defendants, reversed, and the defendants. The latter denied this, a new trial granted. and claimed that the customers pro

Opinion by Rapallo, J. posed, without solicitation, to deal with them on being informed that they had CONSTITUTIONAL LAW. TOWN resumed business. The judge charged

BONDS. the jury that if they found that defend

U. S. SUPREME COURT. ants themselves or by their agents went The Town of Moultrie, plaintiff in into the prescribed limits, and there so- error, v. The Rockingham Ten Cents licited or procured orders and filled Savings Bank. such orders, it was a breach of the cove Decided April, 1876. nant; but if the orders were given The authorized body of a municip!! them without solicitation on the part

corporation may bind it by an ordiof defendants (and whether they were nance or resolution, which, in favor given within such limits was immate of private persons interested therein, riai), the filling of such orders was not a

miy, if so intended, operate as a con.

tract. breach of the contract. Plaintiffs duly The obligation of a contract can no excepted to the last proposition. The

more be impaired by a constitution jury, having retired, returned and asked than by ordinary legislation. this question: "Is the sending an agent In a suit upon negotiable town bonds,

the town is bound by the recitals in every day to the houses within the lim

the bonds, and in its official records. ited district to take orders and filling

In error to the Circuit Court of the them, a competitive business or soliciting the same?" to which the court United States for the Southern District

of Illinois. replied, “In the construction I have given to the contract, it would not be. The bonds in suit were issued under The orders must have originally been authority given to the county by the act procured by the solicitation of the de- of March 26th, 1869, incorporating the fendants. If they proceeded from the railroad company. The tenth section customers, and not by the procurement of the act was as follows: of the defendants, it was not a breach

“The board of Supervisors of Moulto fill them.” This ruling was duly trie County are hereby authorized to excepted to by the plaintiffs.

subscribe to the capital stock of said Chas. H. Smith for applts.

company, to an amount not exceeeding Jno. L. Hill for respts.

eighty thousand dollars, and to issue Held, That these rulings were erro- the bonds therefor, bearing interest at a neous; that the covenant of defend- rate not exceeding ten per cent. per anants bound them to do more than num, said bonds to be issued in such derefrain from soliciting patronage; it nominations, and to mature at such bound them not to carry on the business times as the board of supervisors may within the prescribed district, and if determine, provided that the same shall applied to for that purpose, it was their not be issued until the said road shall be duty to decline. 4 Wend., 468 ; Tur- opened for traffic between the city of ner v. Evans, 2 El. and Bl., 512, dis- Decatur and the town of Sulivan aforetinguished.


No approving popular vote was re- company, in pursuance of their charter. quired.

“And be it further ordered by the This section gave to the county conn- board of supervisors aforesaid that, plete authority to make a subscription when said railroad shall be open for to the capital stock of the company. traffic' between the city of Decatur and The power was fettered by no condi. the town of Sullivan aforesaid, there tions or limitations, except as to the shall be issued eighty thousand dollars amount which might be subscribed, but of the bonds of said county, in denomipayment of the subscription was direct- nations of not less than five hundred ed to be postponed until the railroad dollars, payable to said company, drawshould be opened. The power thus ing interest, to be paid annually, at the granted was never revoked, unless it rate of eight per cent. per annum; the was by the new constitution of the principal to be due and payable ten state, which did not take effect prior to years after date, or sooner, at the option July 2, 1869, and which annulled the of the county; and that said bonds be power of municipalities ta make dona- delivered to said railroad company in tions in aid of railroad companies. On full payment of the subscription of said the 16th of December, 1869, the board county so made as aforesaid.” of Supervisors met and informally re There was no further order of this solved to subscribe $80,000 to the capi- board to enter the resolutions of record, tal stock of the railroad company, and but it was the clerk's duty to make the the resolutions were referred to a law-entry. The substance of them had yer to be put in forin before being re- been adopted. They remain of record corded on the records of the board. still, and the board has never taken any They were accordingly prepared from action to correct the record. At the minutes furnished by the chairman of December meeting of 1872 a special the board, and entered by the clerk upon committee was appointed to examine the records, as of the date of the De- the records of subscriptions of railroad cember meeting of the board, and duly donations, and report. The committee attested. This must have been done did report on the 25th day of Decemprior to the first Tuesday in March, ber, 1872, that the subscription of 1870. The record, as it appears under $50,000.00 under the act of the gereral date of December 16, 1869, is as fol- assembly of March 26, 1869, to aid in lows:

the construction of the Decatur, Sulli“And it is further ordered by the van, and Mattoon Railroad, was in acboard of supervisors of Moultrie county cordance with law. Under this action that, under and by virtue of the author of the board, and the rep rt of the ity conferred upon said board by an act committee, the bonds were delivered. approved March 26th, A.D. 1369, enti The findings of the court are that the tled An act to incorporate the Deca- plaintiff below is a purchaser of the tur, Sullivan & Mattoon Railroad Coin- bonds for a valuable consideration, havpaly, the county of Moultrie subscribed ing purchased them before their mato the capital stock of the Decatur, Sul- iurity, and without notice of any delivan & Mattoon Railroad Company the fence. They were executed by the suin of eighty thousand doilars to aid president of the board of supervisors in the construction of a railroad by said, and the county clerk. They recite that

they are issued by the county of Moul. It is an crror under the 399th S of

Mol trie, “ in pursuance of the subscription

the coule, to allow plaintiff us a witof the sum of eighty thousand dollars

ness in the case, to show that the testato the capital stock of the Decatur,

tor had not paid a promissory note

in his life time. Sullivan and Mattoon Railroad Com

And in a case where the question is pany, made by the board of supervisors permitted under objection and excepof said county of Moultrie, in Decenn tion, the Court will reverse the judgber, A. D. 1869, in conformity to the

ment, although the plaintiff might

have safely restell his case without provisions of an act of the General As

the puidence. sembly of the State of Illinois, approved A party has a right before offering any March 26, A. D. 1869."

evidence of his lefence to stand upon Hall, 1. A subscription on the books his objection and exception to illegal of the company was unnecessary; that

eridone, for the purpose of having the act of the board of supervisors in

same stricken from the case. 1869, amounted to a subscription ; the

Action upon a promissory note made resolution of that date operated as an by the defendant's testator, payable to immediate subscription.

plaintiff or order. Answer sets up de2. But whether it amounted to a sub- fence of payment. scription or not is of no moment. It

On the trial the plaintiff produced was at least an agreement to subscribe, the note, and proved that the signature and having been accepted by the com- was in the testator's handwriting, the pany, created a valid contract, which note was read in evidence. The plaincould no more be annulled or impaired tiff was called as a witness on his own by the prohibitions of the constitution behalf, and was asked the question : than by legislative enactment.


the owner and holder of this 3. That the defendant could not set note? The defendant objected to the up in defense against a bona fiile question on two grounds; holder, in the face of the recitals of the First, “ That it is a question of law bonds and the county records, that the and calls for the decision of a question authority to make subscriptions bad of law;" and second, “ That the

paper expired before the subscription was ac- in its form, shows a transaction between tually made. Whether it had expired witness and deceased.” These objecwas a matter of fact, not law, and

tions were overruled and defendent ex

pe. culiarly within the knowledge of the cepted. The plaintiff answered, supervisors.

am.” He was then asked the following Judgment affirmed.

question. * IIas it ever been paid?” Opinion by Strong, J.

To this question the same objections were made.

The referee overruled the PRACTICE. EVIDENCE.

objections, and defendant excepted,

The plaintiff answered, "No." N. Y. SUPREME COURT-GEN’L TERM.,

The plaintiff

' rested; and no evidence FIRST DEP'T.

on the questions of payment or the Alexander J. Howell, respt. v. IIenry ownership of the notes was given en K. Van Sicklen, Exectors, et al., &c., the part of the defendant, and the refapplts.

eree rendered judgment for the plainDecided December 2nd, 1875. tiff for the amount of the note. The

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only question in the case is, whether it. In a suit against the maker of a was a fatal errır to allow the plaintiff issory note, it is not suficient to to answer the questions above stated.

allege that plaintiff' had settled

withthe payee, without alleging E. J. Spink, for respt.

payment. George W. Van Sichlen, for applt.

Rule for judgment for want of a lleld, That it was an error to allow

sufficient affidavit of defence. plaintiff, by his own statement as a wit

Assumpsit on a promissory note by ness in the case, to show that the testa

holder against maker. tor had not paid the note in his lifetime.

The affidavit of defence set forth The evidence was not proper, under s

that the note was given to the firm of 399 of the code. Dyer v. Dyer, 48 Barb.

S. Isard & Co., as accommodation pa190; Clark v. Smith, 4; Id. 30; 53 Barb. 337; 3 Lansing, 68.

per, entirely without consideration, and It is no answer to this illegal evidence that plaintiff's derived their title to it

through them; that said Isard & Co. to urge that the plaintiff's case was

had settled all their affairs with the proved without it, and that defendant offered no evidence of payment. It plaintiff's

, and that defendant believed

this suit to be brought entirely in the cannot be held that they had no such

interest of the said Isard & Co. to enevidence to offer, although that may be

able then to recover on the note for the fact. For they had a right to stand upon

which they have given no considera

tion. their exception, as long as it was well

lleld, The affidavit does not allege taken, for the purpose of having this illegal evidence excluded from the case,

payment to plaintifts; it avers a seitle

ment which is not an averment of before they undertook to establish their

ment. defence. They were entitled to be re

Kule absolute. lieved from the effect of that evidence before they finally tried the fact of pay. . PRACTICE. FRAUD. ment, in order that their own proof

N. Y. SUPREME COURT. GENERAL TERM, might not be impaired by its presence

FIRST DEPARTMENT. in the case. The referee properly overruled the other objections to the evi

Jacob P. Marshall, applt., v. Joseph dence. But on account of the errone

S. Fowler et al., re&pts. ous admission under objection of the

Deci led March 29, 1876. above mentioned evidence by plaintiff, In an action for damages for fraud

committed by mems of representa. to disprove payment by defendant's tes

tions, falsely stuting the stute of detator, the judgment must be reversed

fendant's knowledge, it should be so and a new trial ordered, costs to abide alleged specifically in the complaint event.

to raise such an issue on the trial. Opinion by Daniels, J. and Brady, Where the grounds of the action are

false statements made by defendant, J. concurring. Davis, P. J. dissents.

with intent to deceive, it is necessary

that it should appeir by affirmative PROMISSORY NOTE. DEFENSE.

proof, that the defenılants knew the PHILADELPHIA COMMON PLEAS, No. 1.

representations to be fulse. Bank v. Berger.

Fraud will not be presumed or con Decided March 18, 1876,



Appeal from judgment recovered on fraud was committed by means of redismissal of the plaintiff's complaint presentations falsely stating the state of at the circuit.

the defendant's knowledge, etc., was not The plaintiff bronglit this action to in the case. For the purpose of making recover damages for fraud in the sale it a ground of action, it should have made of twenty-four hundred and ten been alleged, if the facts were considbarrels of apples, in December, 1869. ered such as to justify the statement

By the complaint, the fraud was al- that without knowing the condition and leged to consist in the representation quality of the apples the defendants rethat they were a first rate and choice presented that they possessed that lot of Niagara County winter apples; knowledge, and knew them to be in the and that such representation was false condition represented, and the repreand fraudulent, known to the defen- sentations were made to deceive and dedants to be untrue, and made with in- fraud the plaintiff. That was required tent to deceive and defraud the plaintiff. to enable the defendants to understand The defendant, upon these allegations, the charge made against them, in order joined issue.

that they might have a proper opporFor the purpose of establishing the itunity to prepare to meet it at the trial. cause of action, the plaintiff

' himself, And the provision of the code declaring and Murphy, his foreman, one of the that the complaint shall courtain a statewitnesses examined on his behalf, both ment of the facts constituting the cause testified that the defendant stated that of action can be complied with in no the apples were a choice lot of Niagara other way. The case was tried upon County winter apples, that they were the issue whether the defendants' knowwell put up, and a choice lot of apples. ing that the representation was untrue, Evidence was then given which tended represented the apples to be a first rate to show that the apples appeared well and choice lot of Niagara County winand of good quality under the heads of ter apples. By neither one of the rethe barrels, but those in the interme- quests, nor by all of them combined diate space were unfit for ordinary pur- together, was it claimed that any repreposes and mostly of the quality called sentation of the state of defendant's cullings, used for making cider, and the knowledge was made to the plaintiff, difference between their value and that or that any such statement was shown of choice Niagara County winter apples to have been untrue. was shown. Trat made out the case as Held, That for the purpose of mainit was presented by the plaintiff's evi- taining the cause of action, it was necesdence.

sary to show not only that a material At the appeal it was elaborately misrepresentation had been made conargued that a frand was committed by cerning the apples, but also that it means of representations, falsely stating should have beenshown that it was the state of derendant's knowledge con- known to be false by the person maknig cerning the condition and quality of it. The rule upon the subject is now the apples.

very well settled.

Marsh v. Falkner, Wm. II. Niles, for applt.

40 N. Y., 562, 565; 50 N. Y., 480. A. Hamilton Webster, for respt. There was clearly nothing in it from Held, That the point urged that a which it could be reasonably inferred

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