Opinion by WOODRUFF, J. as giving time to Sherman to perform his duty to Moses and Greenman, did not operate to discharge them, whether Kennedy had knowledge of Sherman's previous undertaking or not It follows, that when the period of extension had expired, Moses and Greenman remained liable to the Plaintiff. Sherman had not paid the debt. The Defendant had become bound to them that Sherman should perform his undertaking, and Sherman had not done so. Thereupon a clear liability of the Defendant to Moses and Greenman arose, which they could enforce. The debt was not paid. Nothing had been done which could operate to release them. They had done nothing which could operate to release Goss, the Defendant, from his obligation to them, that the debt should be paid. Kennedy, the Plaintiff, could maintain his action against them, and compel payment. They, in turn, could maintain their action against this Defendant, and recover from him that which he had agreed Sherman should pay for them. In this relation between them and this Defendant, Goss, it was entirely competent to them to assign to Kennedy, the actual creditor, their right to pursue this Defendant, surety to them, and they have done so. On this ground I concur in affirming the judgment. MASON, J., concurs in this view of the case, and places his vote solely upon this ground. Judgment affirmed. JOEL TIFFANY, Statement of the Case. THOMAS D. GREEN, RESPONDENT, v. WILLIAM H. SHUMWAY AND DAMON COATS, IMPLEADED WITH FRANCIS A. THAYER, APPELLANTS. Test Oath-Ex post facto law-Unconstitutionality. That portion of the "Act to provide for a convention to revise and amend the Constitution," passed March 29, 1867, which provided that at the election of delegates no person shall vote who will not, if duly challenged, take and subscribe the following oath: "I do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto; and did not wilfully desert from the military or naval service of the United States, or leave this State to avoid the draft during the late rebellion." Held void. It violates both the Constitution of the United States and the Constitution of the State of New York. Per MILLER, J. It is inconsistent with the just interpretation of the Constitution of the State of New York. Per GROVER, DWIGHT, and CLERKE, JJ. The decisions of the Supreme Court of the United States require that it be held to violate the Constitution of the United States, but it is in no conflict with the Constitution of New York. Per BACON, J. HUNT, Ch.J., and MASON and WOODRUFF, JJ., dissented; holding the act valid, and not inconsistent with either Constitution. APPEAL from judgment of General Term of the Sixth District, reversing judgment in favor of Defendants. The complaint alleged that, pursuant to the Constitution of the State of New York, and an act of the Legislature passed in March, 1867, a lawful election was held throughout the State on the 23d day of April, 1867, for the purpose of choosing delegates to meet in convention at the Capitol on the first Tuesday of June, 1867, to revise the Constitution of the State, and to amend the same. That each qualified elector was entitled to vote for delegates at Statement of the Case. large, and for delegates chosen in the senatorial district in which he might reside; that the Plaintiff was a native-born white citizen, of full age, and a resident of the Third Ward of the city of Syracuse, which constitutes an election district; that the Defendants were inspectors of election for said ward; that the Plaintiff was a duly qualified elector in said district on the 23d day of April, 1867, and entitled to vote; that after the Defendants had entered upon the duties of their office as inspectors, and had duly opened the polls of such election, on the day aforesaid, the Plaintiff offered to vote, and presented a ballot for that purpose, and requested the Defendants to receive the same; that the Defendants, fully intending to deprive him of his rights and franchises as a citizen, refused to receive the ballot so offered, and would not, and did not, permit the Plaintiff to vote at the election, and claims one thousand dollars damages. The answer of the Defendants Shumway and Coats, who appeared, recites and alleges that, by the said act of the Legislature of this State, mentioned and referred to in said complaint, the qualification of electors for the election of senatorial delegates and delegates at large, to meet in convention to revise and amend the Constitution, is prescribed, with the provision that no person shall vote at said election who will not, if duly challenged, take and subscribe the following oath, to wit: "I (A. B.) do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto; and did not wilfully desert from the military or naval service of the United States, or leave this State to avoid the draft, during the late rebellion." The Defendants then allege that, at the time of the offering Opinion by MILLER, J. of his said ballots for the election of delegates, the Plaintiff was duly challenged as an elector of said district, and required to take and subscribe the oath aforesaid; that the oath was read to him, and he refused to take and subscribe the same. And upon such refusal, the Defendants refused to receive the ballot and deposit the same in the boxes prepared for that purpose, because the Plaintiff thus refused, and returned the same to him. They aver that such refusal to receive and deposit the ballot was made for the purpose of discharging their duty as such inspectors under the act referred to, and ask for a dismissal of complaint. The Plaintiff demurred to the answer. The Special Term, upon argument, sustained the demurrer, and ordered that the complaint be dismissed, with costs. Upon appeal to the General Term the order of the Special Term was reversed, and judgment ordered for the Plaintiff on the demurrer, and the assessment of damages, with leave to amend. The damages were stipulated at fifty dollars, and the Defendants appealed to this Court. William H. Shumway and Damon Coats, in person, for the Appellants. George F. Comstock for the Respondent. MILLER, J.-This case involves the constitutional validity of that portion of the act to provide for a convention to revise and amend the Constitution of this State, which excludes from the privilege of voting all who refuse to take the test-oath prescribed by the act in question (Sess. Laws of 1867, chap. 194, § 2, p. 287). I think that the oath in question was unconstitutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Constitution of the United States provides, that "No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." The provision of the act which is to be considered declares that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he Opinion by MILLER, J. has not done certain acts mentioned therein; and inflicts the penalty of political disfranchisement, without any preliminary examination or trial, for a refusal to take said oath. By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Constitution and the laws of the land, and one of the most inestimable and invaluable privileges of a free government. There can be no doubt, I think, that to deprive a citizen of the privilege of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done. It imposes upon him a severe penalty which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who constitute the great body of the people of which the government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free institutions, that every citizen is permitted to enjoy certain rights and privileges, which places him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test-oath required by the act in question can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offence created by the law itself, In the formation of our national Constitution, its framers designed to prevent and guard against the exercise of the power of the Legislature by usurping judicial functions, and for the punishment of alleged offenders, in advance of trial, for offences unknown to the law, and by bill of attainder, and ex post facto enactments. Laws of this character were considered as among the most mischievous and vicious class of judicial legislation, and in England were made the instrument for gross abuse, and a tremendous |