Strowell v. Vrooman — 2 Cai. 107

Majority

p. 107

Strowell against Vrooman.

Headnote

If there be a Us pendens in tho common pleas, in which there has been m decision, this court will not take up the point on a ease made and submitted by consent.

In this action, wbicb was still pending in tbe common pleas for Saratoga, a motion had been made in tbe court below in arrest of judgment, on wbicb no decision bad been pronounced. The counsel, however, on both sides, agreed to make a ease of it, and submit the matter to the determination of this court.

This practice is increasing, and becoming grievous. It is time it should be arrested. We ought not to decide cases, unless there be a lis pendens here.^[1] We cannot otherwise enforce our decision, and the Very point may come up again. We therefore must refuse taking up the case.

(a) (a) Though there be a Ms pendens, a judge at nisi prius is authorized in refusing to try it, if the issue be such as a court of law ought not to entertain. Therefore, Lord Loughborough would not permit a cause to be brought on, where the matter in dispute was the number of chances in playing an illegal game. Brown v. Leeson, 2 H. Bl. 43. And Lord Ellenborough followed hia example, where the cause of action was a wager on an abstract point of practice. Henkin v. Gerss, 2 Camp. 408; 12 East, 247, S. C, an action not Deing maintainable on a wager on a point of law in'which the parties have not any interest.