Majority
p. 120The People vs. Walbridge.
Headnote
By the “act busesCTinnt the law5” °e °(Stat utes, ml. 4, niTs and com" sellers at law fronTtle^pur pose or re. promifory'any note, &c. ex- mint for estate realorpersonai sola, for services rendered, for a debt antecedently contracted, or for the purpose of making remittance, although such note, See. be not purchased for collection, or for the purpose of bringing a suit thereon.Case brought. up from the Rensselaer oyer and terminer for the advice of this court. The defendant was indicted, for ^at on th® 20th day of April, 1824, he did buy of one J. B. Souza a certain promissory note, bearing date the 14th April, *824, made by one William McMurray, for the sum of $125, 50, payable to A. V. Adriance or order in ninety days, endorsed by the payee to Souza, who was the holder and proprietor thereof until the purchase thereof by the defendant, f°r a good and valuable consideration; he, the said defendant, at the time of such purchase, being an attorney and counsellor of this court, and of the court of common pleas of pie county of Rensselaer; and that the defendant did not buy J J
p. 121
or receive the said note in payment for any estate real or personal, or for any services actually rendered, and for any debt antecedently contracted, or for any purpose of remittance, without any intent to violate or evade the act of the legislature of the state of Néw-York, entitled, “An act to prevent abuses in the practice of the law, and to regulate costs in certain cases,” passed April 21, 1818.[1] The defendant was also charged, in other counts of the same indictment, with having bought four other promissory notes given by the said William McMurray, viz. one to Prudence Barton for $42,60, another to A. V. Adriance for $125,50, a third to E. Goss for $31, 20, and a fourth to C. Fairbanks for a sum of money to the jurors unknown. The same averments were made substantially as in the first count of the indictment. The defendant pleaded not guilty, and a trial was had at the Rensselaer oyer and terminer, in June, 1827, before the Hon. William A. Duer, one of the circuit judges, and David Buel, jun. and Herman Knickers acker, Esquires, judges of the county courts of that county.
p. 122
On the trial of the cause, the malting of the note set forth in the first count of the indictment, and the endorsement of the same by the payee to Souza, were proved. Souza testified that he, in April, 1824, called on the defendant and requested him to purchase the note ; that the defendant, on inspecting the note, observed that McMurray was a long winded fellow, and Adriance he considered insolvent; but that if witness would deduct $10, and endorse the note, he would let him have the money; that witness did endorse the note, received $115 50, and left the note with the defendant. On his cross-examination, he stated that the defendant said, at the time, he would not buy the note, but that if witness would endorse it and discount $10, he would let him have the money; that if paid when it became due, well; if not, he should look to witness. The witness further testified, that the note, when due, was protested, and he received notice of non-payment from the defendant, whom he directed to prosecute the. maker of the note for the benefit of witness.
The purchase of the note given by McMurray to P. Barton for $42,60 was proved. The note to Goss for $31, and the note to Fairbanks, (proved to be for about $23,) were shewn to have been in the hands of the defendant, who was a justice of the peace, and told McMurray that one McCullough had left them with him, the defendant, for collection, and had taken out two summonses against him (McMurray.) After some negotiation between the defendant and McMurray, the latter gave the defendant his nóte for $87, which sum composed of the said two notes and several demands which the defendant had against him. It was admitted, that on the 1st of April, 1824, the defendant was, and at the time of the trial continued to be an attorney and counsellor of this court, and of the Rensselaer common pleas.
The counsel for the defendant urged that the evidence was not sufficient to warrant a conviction, because, I. The note received by defendant from Souza was not due at the time of its delivery to the defendant; 2. It was left as a pledge to secure the money loaned to Souza; and 3. The three other notes were severally under $50. The court overruled these objections, and chai’ged the jury that, in their opinion, if the
p. 123The object of the statute under which the defendant is sought to be convicted is, to prevent the purchase by the attornies of notes, &c. with the intent to commence suits thereon. The act of 1818, (Statutes, vol. 4, p. 278, c,) referred to in the indictment, creates no new offence. The general “ act concerning counsellors, attornies and solicitors,” passed in 1813, (1 R. L. 417, § 7,) had already declared it a misdemeanor for an attorney to purchase a note, &c. with the intent to sue; and the sole object of the act of 1818 was to obviate objections as to proof, which, under the former act, was necessary, and yet difficult to be produced. The public prosecutor was bound to aver and prove the intent with which the purchase was made. By the act of 1818, the burden of the proof is cast on the accused. In 1 Cowen, 458, Mr. Justice Sutherland, in speaking of these statutes, says they are in pari materia, and thus supports the construction we contend for. Unless we are right, an attorney cannot pay the debt of his father and retain the security, without subjecting himself to the danger of being struck from the roll. The second section of the act of 1818, shews the intent of the legislature in the jii st section, under which this
defendant actually purchased the note of $125, it was imrnaterial whether the purchase was made before or after it became due ; that it was their province to determine whether he purchased the same or received it as a pledge ; that to convict the defendant, the jury must be satisfied that the defendant directly or indirectly bought the note; that if satisfied of such purchase, the defendant, to justify himself, was bound to. shew that in making the purchase he - came within the words or spirit of the proviso of the act under which he was indicted. As to the other three notes, the court told the jury that, in their opinion, the fact of the notes being severally for less than $50, furnished no defence ; but that it was for the jury to determine, both as to the construction to be given to the act, and whether or no the defendant, in the purchase of the said notes or either of them, came within the spirit of the proviso of the act. The jury found the defendant guilty, and the oyer and terminer suspended judgment until the advice of this court could be obtained.
H. P. Hunt, for defendant.
p. 124prosecution is had. By the second section, a defendant sued on a note, dec. is allowed to plead that the note, &c. was bought or received for prosecution, contrary to the provisions of the act; and on proving the fact, is entitled to demand a nongu;ti it has been supposed that because the act of 1820» (Statutes, vol. 5, p. 141, b,) extending the the prohibition to the purchase of notes, &c. to justices of the peace, forbids such purchase, “ for the purpose of commencing any action thereon,” that such act is a legislative exposition of the act of 1818; that in one case the illegality is made to consist in the intent; in the other, in the simple fact of purchase. It is denied that this is a fan- deduction. On the contrary,'we contend that the act of 1820 has explicitly declared» what we say is the spirit of the act of 1818. If this view of the act be correct, then, there is no offence charged in the indictment; for there is no allegation that the notes wére bought with the intent to sue, and the jury were misdirected when told that unless the defendant brought himself within the_promso of the act he must be convicted. The legislature, in the Revised Statutes, (vol. 1, p. 288,) in re-enacting the law of 1818, have made the offence to consist in the purchase of a note, &c. with the intent of bringing a suit thereon. In indictments for offences created by statutes, it is not enough merely to pursue the description of offence in the words of the act. It should be alleged that an offence against the public has been committed. Thus, in this case it should have been averred not only that a note was bought, but that it was bought with the intent to commence a suit upon it, to the injury of the citizen by the unnecessary commencement of a suit, the unjust accumulation of costs, &c. (1 Chitty’s Crim. Law, 276. Hawkins, book 2, ch. 25, § 99. 2 T. R. 581, opinion of Buller, J., and 3 T. R. 98.) The question now argued was not raised at the trial. Indeed it could not have been heard, as the indictment was originally demurred to for the want of an averment that the notes were bought with the intent to be sued, overruled by the oyer and
J. Pierson, (district attorney of Rensselaer co.)
p. 125terminer, and their decision supported by this court. (6 Cowen, 512.) The questions presented at the trial were, that one note, when purchased, was not due, and that it was taken as a pledge; and that as to' the other notes, being for amounts less than $50, .and thus not the subjects of suits on which costs could be made, they were not of that description which attornies were prohibited from purchasing. [The district attorney here entered into an argument, and cited a number of cases in support thereof, in opposition to the objections raised at the trial; but, as the decision of the court is made upon the principal question raised on the argument here, it is deemed unnecessary to present a view of this part of the argument of the public attorney.] As to the necessity of the averment and proof of the intent with which the purchase was made. The statute requires no such averment or proof. The act of 1813 did require it, and therefore the act of 1818 was passed. The difficulty of proving the intent, induced the legislature to declare the mere act of purchasing a note, &c. by an attorney, except in the cases specified in the proviso, the offence. Can it be, when the legislature have specified the cases in which only it shall be lawful for an attorney to receive a note, &c. that the act may be evaded by an objection that the indictment does not contain an averment which the statute does not render necessary. If such averment be required, the act of 1818 is nugatory, and the law remains as it was under the act of 1813. The ind ictment, setting forth the offence in the words of the . statute and specifying with all possible precision the transaction charged to be a violation of the act, is sufficient. To prevent abuses in the practice of the law, is the title of the act under which this prosecution is had. The object of the legislature was, to deter attornies and counsellors, in the practice of the law, availing themselves of their situation to accumulate costs at the expense of poor and unfortunate debtors, from the purchase of notes, &c. with the intent to commence suits thereon. The statute was passed to prevent abuses in the practice of the
A. Van Vechten, in reply.
p. 126law, as connected with the purchase of notes, procured for tjje increase 0f such practice, to the emolument of the attorney, and to the detriment of the citizen, and it imposes ^le severest penalties on attornies for doing an act so derogatory to their profession, and so injurious to the public. This is the offence aimed at by the statute. From the mere buying of a note, no abuse in the practice of the law could arise. The buying of a note is not the practice of the law ; for if so, every broker would be a practitioner of the law. The statute was not meant to prohibit a benevolent act, as the paying of a note of'a friend and retaingthe security; or an entirely innocent act, as the buying of a note and locking it in a desk until paid; or a speculation in the public stocks, should an attorney be so fortunate as to have some surplus funds. Stock is a chose in action, and the purchase of it is equally prohibited with the purchase of a note. It is the malum animum which the law regards; it is the intent with which the purchase is made which characterises the act. To state in an indictment that an attorney has bought a promissory note, does not shew that he has committed a crime, or violated a statute, unless it be averred ' that the intent or object of the statute has been violated ; and if the offence consist in the intent to violate the object and spirit of the act, such intent must be expressly averred and proved. If a contrary construction is to prevail, every person who has ever been admitted as an attorney, or counsellor of this court, although he has retired from the practice of the law for years, is prohibited, under any circumstances, from purchasing a note, &c. although such purchase is entirely disconnected with the practice of the law, to prevent abuses in the practice of which, the statute was passed, and for no other purpose. The second section of the act, which destroys the right to recover on a note. bought for prosecution, shews the intention of the legislature, and the proviso to the first section, which looks to the intent, corroborates our Construction, that it is the intent alone which rendeis the purchase unlawful.
p. 127The act of 1818 is broader in its terms than the act of 1813, and was intended to prevent evasions of the act first passed, but it creates no new offence. The purchase of a note, Sic. with the intent to sue, is the evil intended to be remedied by both acts; both relate to the same object, and are therefore in pari materia. The principle of the acts of 1813 and 1818 was extended to justices of the peace, by the subsequent statute, passed in 1820. That act clearly expresses, that the evil intended to be remedied, was the purchase with the intent to sue. The oyer and terminer erred in instructing the jury that it was their province to give a construction to the act; it is the duty of a court, and not of a jury, to put a construction upon a statute.
By the Court,
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,
p. 128
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
p. 129
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
p. 130
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.