People v. Walbridge

3 Wend. 120 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

This case came before us heretofore on a demurrer to the indictment. (6 Cowen, 512.) We then considered the indictment good, and it was carried down to the oyer and terminer for trial; the jury have passed on the fact of the purchase of the note, charged in the first count. The question is again presented, whether the indictment charges any offence punishable by law.

The substance of the first section of the act rejecting superfluous verbage is, that no attorney or counsellor shall buy any bond, bill, promissory note, bill of exchange, book debt or other chose in action; nor shall any such 'attorney or counsellor, directly or indirectly, lend or advance any money to any person as an inducement to the placing in the hands of such attorney or counsellor any debt, demand or chose in action against any other person for collection: then follows the penalty and the proviso, which is, that it is not intended to prohibit the receiving in payment by any attorney or counsellor, any bond, &c. for estate, real or personal, or for services actually rendered, or for a debt antecedently contracted, or from buying or receiving any bill of exchang, draft, or other chose in action, for the purpose of remittance, or without any intent to evade or violate this act. As I read the act, it creates two offences; first, the act of purchasing a note by an attorney or counsellor is prohibited ; secondly, the procuring a note, by loan of money, for the purpose of co]lection. It is contended that the words for collection, in the statute, relate to all which precedes them, and that of course the purchase is not prohibited, unless made for coljec^Qn . jjUt from the manner in which the sentence is framed, it seems to me the words for collection, relate only to the member of the sentence in which they are found, and not to the first member ; and consequently the first member contains an absolute prohibition, without reference to the intent or object of the purchase. This construction seems to me to be confirmed by the proviso. If no offence was created unless the purchase was made for the purpose of collection, it was surely useless, at least, to state in the proviso that there were four objects for which an attorney or counsel might lawfully purchase a note. If he was at liberty to purchase for any purpose except for collection, why specify only four instances in which he was not prohibited from purchasing. The introduction of the proviso proves to my mind, that the legislature supposed that without it, no note could be purchased by an attorney or counsellor for remittance, or received in payment for property sold, or for services rendered, or for an antecedent debt; and of course they must have intended the first paragraph of the first section as a total prohibition.

As long since as 1807, the legislature considered the purchasing ofnotes for collection an evil requiring their interposition ; and they then, (sess. 30, ch. 107, sect. 4,) enacted, “That if any attorney of the supreme court, or of any court of common pleas, shall purchase or receive, by way of pledge or security for money lent, any bond, note or other writing with intent to commence a suit thereon, and shall commence such suit accordingly, every such attorney shall be deemed guilty of a misdemeanor.” This section was re-enacted in the same words in the seventh section of the act concerning counsellors, attornies and solicitors, in the revision of 1813, (1 R. L. 417 ;) and so the law remained until 1818, when the statute now under consideration was passed. The object of the. legislature undoubtedly was to prevent the officers of courts from purchasing notes, or loaning money upon them, for the purpose of prosecution. The intent, under the former law, was to be shewn by a suit actually commenced. Probably the legislature was of op nion that in that way they could never strike at the root of the evil. It is certain, however, they intended something different from the former statute, and something more restrictive. Had they intended only to prohibit an attorney from purchasing a note for collection, it was very easy to say so. But they evidently, to my mind, intended to relieve the public prosecutor from any trouble in proving the intent with which the purchase was made. The purchase is to be of itself evidence of the intent ; and the attorney shall be punished severely for the act, unless he disproves the wicked intent, by shewing one of four things, viz. a receiving the note for property sold; for services rendered; for an antecedent debt; or for the purpose of remittance, and without any intent to evade or violate the act; that is, as I understand it, every other mode by which an attorney gets a note into his possession as owner is a violation of the act.

It is contended, if such is the true construction of the act, that it is oppressive and unconstitional. There is nothing in the constitution to prohibit the legislature from imposing restrictions upon certain classes of citizens. The constitution itself has set the example, by prohibiting certain persons from holding any civil office, as being incompatible with the duties of their professions. The legislature, no doubt, thought it derogatory to the character of an attorney or counsellor to be soliciting or purchasing business, and thereby causing distress in the community by numberless unnecessary prosecutions ; and they said, (and properly so, in my judgment,) that no man who is capable of resorting to such expedients shall hold the office of attorney or counsellor in this state. They judged correctly, also, in concluding that to remedy the evil, there must be no difficulty about proving the intent. They no doubt asked, for what purpose does an attorney buy a note, unless for prosecution? and answered by saying, he buys it for no other purpose, unless he brings himself within the exceptions contained in the proviso. ' They accordingly went tthe whole length of absolute prohibition, except in the Specifjed cases.

'• ^ am therefore of opinion that the court of oyer and terminer be advised to render judgment against the defendant UP0n the conviction.