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CONSTITUTION. CONSTRUC- ions of Sec. 17 of the constitution of this state. That section declares that

TION.

N. Y. SUPREME COURT. GEN'L TERM."no act shall be passed which shall pro-
FOURTH DEPARTMENT.
"vide that any existing law, or any

In the matter of the application of "part thereof, shall be made or deemed
the water commissioners of Roch-"a part of said act, or which shall en-
ester to acquire title to lands of "act that any existing law, or any part
the Rochester Water Co.
"thereof, shall be applicable except by
"inserting in it such act.”

In the matter of the application of
the Rochester Water Company
to change the route adopted y
the Rochester water commission-vides that the proceedings of the com-
ers, &c., &c.

The act referred to above under which these proceedings are taken pro

missioners to acquire title to land shall be carried on in conformity to the provisions of the general railroad act, &c., &c.

Decided January, 1876. In construing the constitution, effect must be given to the intention of the framers, and the construction should Ileld, That in construing the constibe a liberai one where the object is the tution effect must be given to the inten prevention of abuses and a preservation of its framers, and the construction tion of the public good. The provision of the constitution which should be a liberal one where the obdeclares that "no act shall be passed ject to be attained is the prevention of which shall provide that any existing abuses or the preservation of public law, or any part thereof, shall be good. made or deemed a part of said act;

That the abuse sought to be preventor which shall enact that any existing ed in the adoption of Sec. 17 of the law, or any part thereof, shall be ap

only.

plicable, except by inserting in it such constitution, was the practice that had act" applies to acts referring to ex-rown up of incorporating the provisisting local or private laws, or to laws ions of existing laws in bills passed by appropriating money to pay claims the legislature, by general reference against the state, and is not intended to require that all general laws must That the intention of the convention be incorporated in all subsequent ones that may have reference thereto. that adopted the amendment of the This is an appeal from an order made constitution under consideration must at special term refusing the application be ascertained from the language emof the Water Company of Rochester to ployed, if possible. Intention not exappoint commissioners to change the pressed cannot be acted upon, but in route adopted by the commissioners of the Rochester water works, &c., &c. The proceedings to acquire the lands, &c., of the water company were conducted, in part at least, under Chap. 39 of the Laws of 1875. This act, as is cla med by the counsel of the water company, is unconstitutional because it was passed in violation of the provis

case of ambiguity in the language resort must be had to evidence of intention outside of the section of the consti tution, in order to enable the court to solve the doubt the ambiguity creates.

That the intention with which the section in question was adopted is manifest, and is to have full effect, unless to give it such effect would produce mis

chievous results, which, had they been anticipated the section, would not have been adopted. A literal construction would require that in every bill incorporating a municipal corporation the provisions of the revised statutes relating to elections, &c., should be incorporated, and such a construction would embarrass legislation, and give rise to great expense and complication.

Peter Helvese v. Hibernia National Bank.

Decided May 19, 1876.

Where a bank certifies a check without filling all blanks, and by such omission the check is raised, it is liable in an action to recover the value of such raised check.

The certificate of a bank is equivalent to an acceptance.

Action to recover on a certain check

That no great abuses were practic- for $4,150, certified to be good by deed by applying the existing general fendant.

laws of the state to subsequent ones. Defense, that the check had been The abuses almost invariably resulted raised after certification, and the date from applying existing local or private altered.

laws, or laws appropriating money to On the 2d of July, 1874, defendant pay claims against the state to subse-certified a check of a customer (W.) for quent acts, and the true intent of the $41. There was a blank after the words convention that adopted the section of forty-one" which defendant neglected constitution under consideration must to draw a line through. Afterward be held to have applied such section to said W. filled said blank with the words such last mentioned laws, and not that "hundred and fifty," making it read all general laws must be incorporated "forty-one hundred and fifty dollars," in every subsequent law passed, which and changed the date to the 7th of in any way may have reference to such July. He then, in due course of busigeneral laws. ness passed it to plaintiff, and afterwards absconded.

That both the legislature and executive have adopted this construction, as

Judgment was rendered for defendis shown by an examination of the sesant, and from this judgment plaintiff

sion laws.

appeals.

Held also, That for the further reason that the water company refused to give the stipulation not to disturb the water commissioners in the occupation and use of the premises sought to be acquired as required by the general R. R act, an appeal by the owners of the land cannot be brought unless such stipula-dent man of business. tion is given.

Held, That the bank was negligent in certifying the check without drawing a line with a pen across the blank, thereby enabling the drawer to perpetrate the fraud, there being nothing in the appearance of the check to excite. the suspicion of the plaintiff as a pru

Orders in both cases affirmed.

Opinion by Mullin, P. J.

The certificate of the bank that a check is good, is equivalent to acceptance, 10 Wall, 647.

Judgment of court below annulled. and judgment ordered entered for

RAISED CHECK. LIABILITY OF plaintiff against defendant for $4,150,

BANK CERTIFYING.

SUPREME COURT OF LOUISIANA.

with interest from July 7, 1874, and

costs.

Per curiam opinion.

LIFE INSURANCE. SURETY ON that the company required a further

BOND OF AGENT.

U. S. SUPREME COURT.

Jacob Magee and Henry Hall, pltfs. in error, v. The Manhattan Life Ins. Co., deft. in error. (October, 1875.) Where a bond is given by an agent, as a condition of his being retained as such agent, conditioned that he will pay over all moneys belonging to the company which he may receive, the sureties on such bond are not exoner

agreement that all the commissions which V. thereafter earned should be

applied on his past indebtedness to the company; that they were so applied; that the sureties were ignorant of the indebtedness and agreement; that if they had been informed of them they would not have executed the bond; and that said agreement was a fraud on them, and avoided the bond as to them. The defendant in error demurred to

ated by the fact that the agent made a the third plea, and the demurrer was further agreement at the same time, as required by the company, that all his sustained. Issue was joined on the first commissions thereafter earned should and second pleas. The jury found a be applied to his past indebtedness to verdict for the defendant in error, and the company, of which they were ig-judgment was given accordingly.

norant.

The mere relation of principal and surety does not require the voluntary disclosure of all the material facts in all cases.

rer.

The question came up on the demur

Held, That the mere relation of principal and surety does not require the This was an action brought by de- voluntary disclosure of all the material fendant in error, against the sureties facts in all cases. The same rule as to upon a bond given by one V., an agent disclosures does not apply in cases of in Mobile, Ala., conditioned that he principal and surety as in cases of insurwould pay over to the company all mon-ance on ships or lives. 10 Exch. 533. eys belonging to it which he should receive. It was claimed that he had received moneys which he failed to pay

over.

The defence was:

1. That V. had paid over all moneys collected by him after the execution of

the bond.

2. That, at the time of giving the bond, V., as such agent, was indebted to the company, and that there was an agreement between him and the company that all moneys received by him should be credited upon this indebtedness; that these facts were concealed from said sureties.

3. That the company required the bond as the condition on which only they would retain V. in their employ;

The plea does not set forth any of the circumstances attending the execution and delivery of the bond. It does not aver that there was any misrepresentation, anything fraudulently kept back, or any opportunity to make disclosures on the part of the company, or any inquiry by the sureties before the bond was delivered. Nor is it averred that the company was aware that the sureties were ignorant of the facts complained of. It is, perhaps, to be inferred from the plea that the fact was that the bond was executed at Mobile, and sent by V., by mail, to the company in New York. If this were so, the company upon receiving it was under no obligation to make any communication to the suretics. The validity of the bond

could not depend upon their doing so. Plaintiff and M. were executors of The company had a right to presume the estate of plaintiff's wife. Upon a that the sureties knew all they desired to final accounting before the surrogate, know, and were content to give the instrument without further information from any source. Under the circumstances it was too late, after the breach, to set up this defence.

by his decree, certain U. S. bonds of the par value of $5,000 were reserved and left in the hands of M. to meet certain annuities provided for by the will. M. died and defendants were appointed There was nothing fraudulent in the his executors, and said bonds came unagreement. The obligation of the der their control. They refused to deagent was simply to pay over the mon- liver them up to plaintiff until he paid ey of the company which he should re- a sum which they claimed due the esceive. This the sureties guaranteed tate of M. for commissions and adthat he would do. To do it was a mat-vances, which claim, plaintiff alleges, ter of common honesty; not to do it was unjust and they disputed; that was a fraud. The agreement of the plaintiff, in order to obtain possession of agent to apply money belonging to him, the bonds paid the claim, although dederived from any source, in payment of fendants had no right thereto, which a pre-existing debt to the company, had sum he sought to recover back in this no such connection with what the sure- action. ties stipulated for as gave them a right Defendants' answer, as construed by to be informed on the subject, except in the court, admitted that the payanswer to inquiries they might have ment of the claim for commission and made. They made none, and there advances was required as a condition was no obligation on the part of the for the delivery of the bonds, but alcompany to volunteer the disclosure. leged that the account therefor as claimed by defendants was delivered. to and examined by plaintiff and admitted to be correct.

On both these grounds the plea was bad, and the demurrer was properly sustained.

Judgment at circuit affirmed.
Opinion by Swayne, J.

EVIDENCE.

N. Y. COURT OF APPEALS.

Scholey, exr., &c., respt. v. Mumford, et al., applts.

Decided April 4, 1876. Evidence to show that payment of money was involuntary is admissible where the fact is material and is put in issue by the pleadings.

This was an action to recover as for moneys had and received by defendant under circumstances set forth in the complaint substantially as follows:

This allegation defendants offered to prove on the trial, but the offer was rejected.

F. A. Macomber for respt.
Geo. F. Danforth for applt.

Held, error; That the averment in the complaint that the claim was disputed was necessary to show that the payment was involuntary, and it was put in issue by the averment in the answer. Defendant therefore had a right to introduce evidence bearing upon it.

Judgment of general term, affirming judgment for plaintiff reversed, and new trial granted,

Opinion by Rapallo, J.

CONTRACT. EVIDENCE. GEN-plaintiff's cause of action and to meet the plaintiff's evidence.

ERAL DENIAL.

N. Y. SUPREME COURT. GENERAL TERM.
FOURTH DEPARTMENT.

Manning, respt. v. Eckert, et al., applts.

Decided April, 1876.

Where a plaintiff proves a part of a
transaction, the defendant, even un-
der a general denial, can prove the
whole transaction.

Evidence to repel a presumption is not
evidence to prove new matter.
Appeal from judgment and order de-
nying new trial.

The pla ntiff in his complaint claimed to have sold and delivered to the defendants barley malt at and for the price and of the value of $378.78, for which the defer dants agreed to pay.

At the trial the plaintiff gave evidence sufficient, prima facie, to entitle him to recover for 250 bushels of barley malt delivered to the defendants, and rested.

The defendants then under the general denial of their answer offered to prove the contract under which said barley was delivered, and to show that it was part of 5,000 bushe's of barley malt which the plaintiff had agreed to sell to the defendants, and that after the delivery of said 250 bushels of said barley, the plaintiff refused to deliver the residue of said barley.

The circuit judge held that although the evidence so offered tended to establish a valid defence, yet such defence was not admissible under defendants' answer of a general denial, and overruled such offer and directed a verdict for the plaintiff for $413.17, to which ruling and decision the defendants' counsel duly excepted.

Held, error. The defendants' proof was simply directed to disprove the

Where a plaintiff shows a part of a transaction on contract or gives evidence sufficient in respect to it as to authorize a verdict, or to imply a contract, the defendant must be entitled to prove the whole transaction under his general denial, and to show that the plaintiff has no cause of action.

Evidence simply directed to repel a presumption or to show an express contract to displace an implied one, set up and proved, is not evidence to prove

new matter.

New matter, as this phrase is used in section 149 of the Code, means matter extrinsic to the matter set up in the complaint as the basis of the cause of action.

The defendants in this case sought to show the whole contract between the parties in respect to this barley-malt and that by the terms and force of such contract, the plaintiff had no right of action.

This right to do so under his general denial of the plaintiff's cause of action seems to me quite plain, and is supported, I think, by abundant authorities, among others by Andrews v. Bunce, 16 Barb., 633; Schmer v. Van Allen, 18 Barb., 2); Beatty v. Swarthaut, 32 Barb., and Boomer v. Koon, 13 Sup. Court Rep., 645.

Judgment should be reversed and a new trial granted, with costs to abide

the event.

Opinion by E. Darwin Smith, J. Mullen concurs in result upon the principle of stare decisis.

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