courts or by the governor, with the consent of the senate, as may be directed by law." It would be liable to the same objection that it is not an appointment by the court, but by certain members of it. In whatever light, therefore, this appointment is viewed, there can be no doubt but that it was unauthorized and void. The judgment of ouster pronounced by the supreme court was therefore right.

The second question-whether that part of the judgment of the supreme court, by which the title to the office of clerk of the common pleas and county court is determined to be in the relator, is correct-remains to be considered. It was contended on the argument of this cause by the counsel for the plaintiff in error, that the denial of the defendant below in his plea of the title of the relator, when taken in connection with the averment in the information, that the relator was clerk of the city and county of New York, formed an issue which would prevent this court upon this demurrer from giving judgment in favor of the relator upon this branch of the information. But it will be seen on examination, that the plea does not deny that Conner was clerk of the city and county as was alleged, but that he was not both such clerk and clerk of the common pleas and county court. This denial is based upon the fact set up in another part of the plea, that the defendant below had been appointed clerk under the act of 1843. The defendant makes no claim to be county clerk, nor does he pretend to show title to that office in any one else. Now, although it might be true that the relator had shown himself entitled to the office of clerk of the city and county, it by no means followed as the plea alleges that he was entitled to both clerkships. This is the whole scope of the plea, and the argument in the former branch of the case proceeded upon such an assumption. It having been shown that the defendant has no claim or title to the office of clerk of the common pleas, it follows as matter of fact, that the relator is such clerk, because it is substantially admitted that he is the clerk of the city and county. The act of 1843 did not abolish the right of the county clerk to act as clerk of the court of common pleas, on account of its conflict with the constitution. Such being my views of the whole case, I am in favor of affirming the judgment of the supreme court.

FOLSOM, Senator. Were it now an open question as to the mode in which the clerk of any judicial court should be appointed to office, expediency would seem to me to require that the appointment emanate from the court itself in which he

is to exercise his functions. But the framers of the constitution of this state, while recognizing this principle in reference to other judicial tribunals, expressly provided otherwise as to county clerks, who were ex officio clerks of the courts of common pleas in their respective counties. These were made elective, and such has been the uniform practice throughout the state, until the legislature of 1843 passed an act, providing that the clerk of the court of common pleas for the city and county of New York should be appointed by the court. The reasons assigned for this change are good on the score of expediency; but it amounts, in my opinion, to an amendment of the constitution, which the legislature is not competent to make.

But while it is admitted on the part of the plaintiff in error that such are the provisions of the constitution, it is argued that "the legislature being sovereign, possesses all powers over the subject, not taken from it by the constitution, and when the legislature acts, a court must see its way clear before they will pronounce its acts void for transcending its powers." The sovereignty of the legislature is, however, not without its limitations; else of what avail are written constitutions, on whose provisions the legislative power may trample whenever it may think fit? Of what value are the most important franchises, involving great public interests, even when protected by the solemn guaranties of the constitution, if they may be invaded and disregarded whenever the increase of population or business, as argued in this case, may seem to render it expedient? The mischievous effects of the principle contended for by the plaintif in error, have been already felt in reference to such interests, and it becomes essential to their security that our judicial tribunals should interpose their authority to guard against this wanton abuse of power. The proper remedy in such cases is by constitutional amendments; and in that way only can a change be made. In my opinion the decision of the supreme court in this case should be affirmed.

PORTER, Senator, gave a dissenting opinion.

On the question being put, "Shall this judgment be reversed ?" the members of the court voted as follows:

For reversal: Senators CLARK and PORTER-2.

For affirmance: The president, the chancellor, and Senators BACKUS, BEEKMAN, BOCKEE, BURNHAM, CHAMBERLAIN, DENNISTON, DEYO, EMMONS, FOLSOM, HAND, HARD, JOHNSON, LESTER, LOTT, SCOVILL, SEDGWICK, SMITH, VARNEY-20.

Judgment affirmed.

POWER OF LEGISLATURE over Public Officers, especially with reference to the enlarging or diminishing the duties and emoluments thereof: Hoke v. Henderson, 25 Am. Dec. 677, and note, where this subject is discussed at length. If the compensation of an officer is regulated by the constitution, the legislature can not modify it: Haynes v. State, 39 Id. 187. If a statute creates an office previously known to the common law, reference must be had to that law to ascertain the officer's duties and the manner of performing the same: Kirksey v. Bates, 31 Id. 722. The principal case is a leading one in the state in which it arose, to the effect that the legislature may increase or diminish the fees of an officer: Cohen v. Wright, 22 Cal. 320; Green v. Mayor, 8 Abb Pr. 29; Phillips v. Mayor, 1 Hilt. 490; Conner v. Mayor, 5 N. Y. 300; Smith v. Mayor, 37 Id. 520; People v. French, 24 Hun, 263. If, however, the constitution provides for the mode of appointment, and prescribes the duties of the office, the legislature can not alter or abolish it, or provide a different mode of appointment: People v. Draper, 15 N. Y. 552; People v. Raymond, 37 Id. 433. In People v. Albertson, 55 Id. 55, the principal case is cited to the effect that a statute plainly inconsistent with the constitution, will not be upheld under the pretense of a liberal or enlightened interpretation, or in deference to the judgment of the legislature, or some supposed necessity; and in Conner v. City of New York, 2 Sandf. 363, it is referred to as containing a correct history of the clerkship of the city and county of New York.

BOYD V. WEEKS.

[2 DENIO, 321.]

EVIDENCE OF THE PAYMENT OF A PROMISSORY NOTE, pendente lite, can not be given in evidence under the general issue. Such defense must be set up by a plea of puis darrein continuance.

ASSUMPSIT. The opinion states the facts.

Clinton Dewitt, for the plaintiff in error.

Edward Sandford, for the defendant in error.

WALWORTH, Chancellor. The action in the court below was commenced by the filing and service of a declaration under the statute, for the recovery of the amount due upon a promissory note at the time of the commencement of the suit. The defendant pleaded the general issue only, and the only question is whether he was authorized under that plea to give in evidence, payment of the note pendente lite. Under the general issue, the defendant may give in evidence payment of the debt for which assumpsit is brought, if such payment was made previous to the commencement of the suit, so that the plaintiff at that time had no subsisting cause of action. And this principle has been carried so far as to permit the defendant to give in evidence, under the general issue, a defense which arose after the issuing of the writ but before the return day thereof, upon the ground that

the plea relates to the time of the declaration and not to any previous date: Worswick, Adm'r, etc., v. Beswick, 10 Barn. & Cress. 676. But a defense arising subsequent to the declaration must be pleaded in bar of the further continuance of the suit and not in bar of the action generally. Such a defense, therefore, can not be given in evidence under the general issue, but must be specially pleaded: Le Bret v. Papillon, 4 East, 502; Covel v. Weston, 20 Johns. 414; Lee v. Levy, 4 Barn. & Cress. 390. And if the defense has arisen subsequent to the time when the defendant has pleaded generally to the action, he should set up the defense by a plea puis darrein continuance. The decision of the judge who tried the cause was therefore in accordance with the settled rules of law on this subject, and the judgment of the supreme court should be affirmed.

Senators LOTT, PORTER, and BARLOW also delivered written opinions in favor of affirming the judgment of the supreme

court.

On the question being put, "Shall this judgment be reversed?" all the members of the court present who had heard the argument, to wit, the president, the chancellor, and senators BACKUS, BEEKMAN, BEERS, BOCKEE, CHAMBERLAIN, DENNISTON, EMMONS, FOLSOM, HAND, HARD, JOHNSON, JONES, LESTER, LOTT, MITCHELL, PORTER, SEDGWICK, and SMITH (twenty), voted for affirmance; and the judgment of the supreme court was accordingly affirmed.

MATTERS OF DEfense, Arising AFTER ISSUE JOINED, must be pleaded puix darrein continuance: Jackson v. Ramsay, 15 Am. Dec. 242. Such pleas should show the date of the last continuance, and that the matter sought to be pleaded arose since that time: Vicary v. Moore, 27 Id. 323. Upon such plea being interposed, all previous pleas are stricken from the record: Kimball v. Huntington, 25 Id. 590. Evidence of payınent under the general issue in assumpsit is admissible: Hanna v. Mills, 34 Id. 216. Defendant will be compelled to pay costs in order to avail himself of the defense of payment after the commencement of the action: Stevens v. Briggs, 39 Id. 209. The principal case is cited to the effect that at common law, matters of defense, such as payment, arising after issue, must be pleaded puis darrein continuance in People v. Baker, 14 Abb. Pr. 32; S. C., 35 Barb. 114; Bendit v. Annesley, 42 Barb. 193; S. C., 27 How. Pr. 184; Carpenter v. Goodwin, 4 Daly, 90; Carpenter v. Bell, 1 Robt. 716; Willis v. Chipp, 9 How. 568; Hart v. Meeker, 1 Sandf. 625. In pleadings under the code such defenses may be set up in the answer: Carpenter v. Bell, 19 Abb. Pr. 263; Willis v. Chipp, 9 How. Pr. 568. In this last case the court said: "The defendant may, after suit brought, settle the cause of action, and then, in his answer, set up such Bettlement by way of defense. Any facts existing at the time the defendant answers, and which show that the plaintiff ought not to have a judgment against the defendant, may be inserted in the answer."

WOLFF v. KOPPEL.

[2 DENIO, 368.]

FACTOR WHO SELLS Under A DEL CREDERE COMMISSION is absolutely liable to pay the price for which the goods were sold, when the credit has expired. His contract is not such as is required to be in writing by the statute of frauds, as being a promise to answer for the debt, default, or miscarriage of another.

ASSUMPSIT, to recover the price of certain goods sold by the defendants, as plaintiff's factors, under a del credere commission. The defendants moved for a nonsuit on the ground that their promise of guaranty was not in writing. The motion was denied, and judgment given for the plaintiff.

George Wood, for the plaintiffs in error.

C. E. Benedict, for the defendant in error.

PORTER, Senator. This writ of error seems to have been brought to determine whether the agreement of a factor to guarantee the sales made by him is a contract within the statute of frauds, requiring an agreement in writing to prove its existence. This necessarily involves an inquiry into the nature of the contract which the factor makes in such a case. The plaintiff insists that one acting under a del credere commission is a guarantor or surety for the debt which the purchaser of the goods contracts; while the defendants, on the other hand, maintain that the factor contracts an original, absolute obligation to pay the principal the amount of the sales, at the expiration of the term of credit. It depends upon the character of the contract in this respect, whether the promise of the factor is to pay the debt of another, or his own proper debt, and consequently whether it can be proved by parol.

I find no case decided prior to the year 1816, which favors the position taken by the defendants. Previous to that time, there are many cases directly hostile to that position. In 1786, in the case of Grove v. Dubois, 1 T. R. 112, Lord Mansfield, C. J., held that the engagement of a broker, acting under a del credere commission, was absolute; and that he was liable in the first instance, and at all events. Buller, J., agreed with him fully, and said he had never heard the inquiry made, whether a demand had been made upon the purchaser. We find these two very distinguished judges speaking of this as a familiar principle, and one universally acknowledged and practiced upon. The case of Scott v. Mackenzie, decided in Scotland in 1795, involved the same principle. The defendant, a factor, acting under a del