15 Johns. 242 | N.Y. Sup. Ct. | 1818
delivered the opinion of the court. Two questions are presented for our consideration in this case: 1. Whether the defendant below was entitled to exemption from this suit upon the facts stated in his plea: and 2. Whether the justice was bound to receive or notice the plea in abatement without affidavit of its truth.
On the first question we are of opinion that, according to the true construction of the 8th section of the act concerning costs, an attorney or counsellor of any court of record is exempt from the service of process issued out of a justice’s court, during the sitting of the court, of which he is an attorney or counsellor. The term of such court may continue until the day before the return day of the summons; and then the defendant would have only one, instead of six days to prepare for his defence : the legal intendment being that the attorney or counsel is occupied exclusively in the business of the term during its continuance. The statute has modified the common law privilege, by subjecting attorneys and counsellors, during vacation, to the jurisdiction of justices ; but the effect of the proviso is to leave them completely under the protection of their common law privileges during the terms of their courts.
On the second question also, the opinion of the court is in favour of the defendant below. The 23d section of the act for the amendment of the law, (1 N. R. L. 524.) requiring dilatory pleas to be verified by affidavit is expressly made applicable to courts of record only. A justice’s court, in the sense of that statute, is not a court of record. The statute says, “ that no dilatory plea shall be received in any court of record, unless the party offering such plea do, by affidavit, prove the truth thereof, &c.” This is said in reference to the practice of all courts of record of receiving written pleas, in vacation or in term, by filing them in the
Judgment reversed.