CONSTITUTION. CONSTRUC-ions of Sec. 17 of the constitution of TION.

this state. That section declares that 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 enester to acquire title to lands of "act that any existing law, or any part

the Rochester Water Co. “ thereof, shall be applicable except by: In the matter of the application of "inserting in it such act.” the Rochester Water Company

The act referred to above under to change the route adopted y

which these proceedings are taken prothe Rochester water commission- vides that the proceedings of the comers, &c. &c.

missioners to acquire title to land shall Decided January, 1876.

be carried on in conformity to the In construing the constitution, effect provisions of the general railroad act,

must be given to the intention of the &c., &c. 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 preserva- tion of its framers, and the constrution tion of the public good. The provision of the constitution which should be a liberal one where the obs.

declares that's 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. maile or deemed a part of said act; That the abuse songht 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 applicable, ercept by inserting in it such constitution, was the practice that had actapplies to acts referring to er- 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

only. to require that all general laws must be incorporated in all subsequent

That the intention of the convention 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 cannat be acted upon, but in route adopted by the commissioners of case of ambiguity in the language rethe Rochester water works, &c., &c.

sort must be had to evidence of intenThe proceedings to acquire the lands, tion outside of the section of the consi. &c., of the water company were con- tution, in order to enable the court to ducted, in part at least, under Chap. 39 solve the doubt the ambiguity creates. of the Laws of 1875. This act, as is

That the intention with which the cla med by the counsel of the water section in question was adopted is mancompany, is unconstitutional because it ifest, and is to have full effect, unless to Was passed in violation of the provis- give it such effect would produce mis.

ones that

chievous results, which, had they been Peter IIelvese v. Ilibernia National anticipated the section, would not have Bank. been adopted. A literal constructicn Decided May 19, 1876. would require that in every bill incor- Where a bank certifies a check without porating a municipal corporation the filling all blanks, and by such omisprovisions of the revised statutes rela sion the check is raised, it is liable ting to elections, &c., should be incor

in an action to recover the value of

such raised check. porated, and such a construction woui d The certificate of a bank is equivalent embarrass legislation, and give rise to

to an acceptance. great expense and complication.

Action to recover on a certain check Thit no great abuses were practic, for $1,150, 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 inoney to

On the 20 of July, 1874, defendant pay claims against the state to subse- certified a check of a customer (W.) for guent acts, and the true intent of the

$41. There was a blank after the words convention tliat 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 afterThat both the legislature and execu

wards absconded. tive have adopted this construction, as

Judgment was rendered for defendis shown by an examination of the ses- ant, and from this judgment plaintiff sion laws.

appeals. Held also, That for the further rea

lleul, That the bank was negligent son that the water coinpany refused to in certilying the check without drawgive the stipulation not to disturb the ing a line with a pen across the blank, water commissioners in the occupation thereby enabling the drawer to perpeand use of the premises sought to be trate the fraud, there being nothing in acquired as required by the general R. R the appearance of the check to excite act, an appeal by the owners of the land the suspicion of the plaintiff' as a prucannot be brought unless such stipula- dent man of business.

The certificate of the bank that a tion is given.

check is good, is equivalent to acceptOrders in both cases affirmed.

ance, 10 Wall, 647. Opinion by Mullin, P.J.

Judgment of court below annulled

and judgment ordered entered for RAISED CHECK. LIABILITY OF plaintiff against defendant for $1,150,

with interest from July 7, 1874, and BANK CERTIFYING.

costs. SUPREME COURT OF LOUISIANA. Per curiam opinion.


LIFE INSURANCE. SURETY ON that the company required a further BOND OF AGENT.

agreement that all the commissions U. S. SUPREME COURT.

which V. thereafter earned should be Jacob Magee and Henry Hall, pltfs. applied on his past indebtedness to the in error, v. The Manhattan Life Ins. company; that they were so applied ; Co., deft. in error. (October, 1875.)

that the sureties were ignorant of the

indebtedness and agreement; that if Where a bond is given by an agent, as a condition of his being retained as

they had been informed of them they such agent, conditioned that he will would not have executed the bond ; and pay over all moneys belonging to the that said agreement was a fraud on company which he may receive, the them, and avoided the bond as to them. sureties on such bond are not exoner 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 coinmissions thereafter earned should and second pleas. The jury found a be applied to his past indebtedness to j 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

The question came up on the demursurety does not require the voluntary disclosure of all the material facts

Field, That the mere relation of prinin all cases.

cipal and surety does not require the This was an action bronght 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 prir.cipal 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 re The plea does not set forth any of the ceive. It was claimed that he had re- circumstances attending the execution ceived moneys which he failed to pay and delivery of the bond. It does not

aver that there was any misrepresentaThe defence was:

tion, anything fraudulently kept back, 1. That V. had paid over all moneys or any opportunity to make disclosures collected by him after the execution of on the part of the company, or any intine bond.

quiry by the sureties before the bond 2. That, at the time of giving the bond, was delivered. Nor is it averred that V., as such agent, was indebted to the the company was aware that the surecompany, and that there was an agree ties were ignorant of the facts complainment between him and the company ed of. It is, perhaps, to be inferred that all moneys received by him should from the plea that the fact was that the be credited upon this indebtedness; bond was executed at Mobile, and sent that these facts were concealed from by V., by mail, to the company in New said sureties.

York. If this were so, the company 3. That the company required the upon receiving it was under no obligabond as the condition on which only tion to make any communication to the they would retain V. in their employ; suroties. The validity of the bond


could not depend upon their doing so. Plaintiff and M. were executors of The company had a

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 in- by his decree, certain U. S. bonds of the strument without further information par value of $-5,000 were reserved and from any source.

Under the circum- left in the hands of M. to meet certain stances it was too late, after the breach, annuities provided for by the will. M. to set up this defence.

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 On both these grounds the plea was claimed by defendants was delivered bad, and the demurrer was properly to and examined by plaintiff and adsustained.

mitted to be correct. Judgment at circuit affirmed.

This allegation defendants offered to Opinion by Swayne, J.

prove on the trial, but the offer was re


F. A. Macomber for respt.

Geo. F. Danforth for applt. Scholey, exr., &c., respt. v. Mumford, lleld, error; That the averment in et al., applts.

the complaint that the claim was disDecided April 4, 1876.

puted was necessary to show that the Evidence to show that payment of payment was involuntary, and it was put

money was involuntary is admissi. in issue by the averment in the answer. ble where the fact is material and is Defendant therefore had a right to put in issue by the pleadings. introduce evidence bearing upon it.

This was an action to recover as for Judgment of general term, affirming moneys had and received by defendant judgment for plaintiff reversed, and under circumstances set forth in the new trial granted, complaint substantially as follows : Opinion by Rapallo, J.

new matter.

CONTRACT. EVIDENCE. GEN- plaintiff's cause of action and to meet ERAL DENIAL.

the plaintiff's evidence. N. Y. SUPREME COURT. GENERAL TERM.

Where a plaintiff shows a part of a FOURTII DEPARTMENT.

transaction on contract or gives eviManning, respt. v. Eckert, et al., applts. dence sufficient in respect to it as to anDecided April, 1876.

thorize a verdict, or to imply a contract, Where a plaintiff proves a part of a

the defendant must be entitled to transaction, the defendant, even un-prove the whole transaction under his der a general denial, can prove the general denial, and to show that the whole transaction.

plaintiff has no cause of action. Evidence to repel u presumption is not evidence to prove new matter.

Evidence simply directed to repel a Appeal from judgment and order de- presumption or to show an express connying new trial.

tract to displace an implied one, set up The pla ntiff in his complaint claim- and proved, is not evidence to prove ed to have sold and delivered to the defendants barley malt at and for the New matter, as this phrase is used in price and of the value of $378.78, for section 149 of the Code, means matter which the defer dants agreed to pay.

extrinsic to the matter set up in the At the trial the plaintiff

' gave evi- complaint as the basis of the cause of dence sufficient, prima facie, to entitle action. him to recover for 250 bushels of barley The defendants in this case sought to malt delivered to the defendants, and show the whole contract between the rested.

parties in respect to this barley-malt The defendants then under the and that by the terms and force of such general denial of their answer offered contract, the plaintiff had no right of

the contract under which said action. barley was delivered, and to show that

This right to do so under his general it was part of 5,000 bushe's of barley denial of the plaintiff's cause of action inalt which the plaintiff had agreed to seems to me quite plain, and is supporsell to the defendants, and that after the ted, I think, by abundant authorities, delivery of said 250 bushels of said

among others by Andrews v. Bunce, barley, the plaintiff refused to deliver

16 Barb., 633; Schmer v. Van Allen, the residue of said barley. The circuit judge held that although Barb., and Boomer v. Koon, 13 Sup.

18 Barb., 2); Beatty v. Swarthant, 32 the evidence so offered tended to estab- Court Rep., 645. lish a valid defence, yet such defence was not admissible under defendants'

Judgment should be reversed and a answer of a general denial, and over- new trial granted, with costs to abide ruled such offer and directed a verdict the event. for the plaintiff for $113.17, to which Opinion by E. Darwin Smith, J. ruling and decision the defendants'

Mullen concurs in result upon the counsel duly excepted.

principle of stare decisis. lleld, error. The defendants' proof was simply directed to disprove the

to prove

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