22 Barb. 593 | N.Y. Sup. Ct. | 1855
The 5th section of title 4, of art. 3d, of part 3d, of ch. 10'th of the revised statutes, prohibits an attorney from receiving any other or greater fee or reward for any service than shall be allowed by law; and the 7th section of the same title makes the receiving of such fees a misdemeanor, and subjects the person guilty thereof to treble damages. (2 R. iS, 651, § 7.)
I am of opinion, after a careful examination of the pleadings in this case, that this is not to be regarded-as an action of assumpsit based upon an implied promise ; and if so, then certainly it is not an action for money due upon a contract, express or implied, within the meaning of the first section of the act of April 26,1831, and consequently the provision of the act abolishing imprisonment for debt arising upon contract does not apply to the case, and therefore the justice had no jurisdiction to issue a short summons. ' But if we hold it to be an action based upon an implied promise, then I am of opinion that the case is excepted from the provisions of the act of April 26, 1831, allowing a short summons. Sections 2 and 30 of that act seem very clearly to except this case. The 2d section excepts from the provisions of the act, non-residents of the state, &c., and also actions for fines or penalties, or on promises to marry, or for moneys collected by any public officer, or for any neglect or misconduct in officers or in any professional employment ; and the' 30th section provides that no execution against the body shall be issued by any justice of the peace,
But again, it should be borne in mind that prior to the act of April 26, 1831, the summons could never go against a non-resident of the county. It was expressly provided by the 13th
Gray, J., and Shankland, J., concurred.
Crippen, J., .voted for reversal, on the grounds and for the reasons stated in his opinion as reported in 13 Barb. 634.
Judgment reversed.
Crippen, Gray, Shank, land, and Jyiapn, Justices.]