Orcutt v. Pettit

4 Denio 233

• Court: New York Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

Per Curiam.

We think it quite doubtful whether the question, under the statute respecting the purchase of choses in action by attorneys, can be raised, except by an examination of the plaintiff, or his attorney or counsel; but it is unnecessary in this case to pass upon that point. We are clearly of opinion that the legislature did not intend there should be a verdict upon that point; and that when the question is properly presented, the court must determine it. Other defences may be relied upon, besides a violation of the statute, in the same action, and whenever an issue is joined a jury must be called and must pass upon the other questions. If this peculiar defence is established, the plaintiff must be nonsuited. This the jury cannot of course do. So, if in the judgment of the court the defendant has failed, the jury must be so instructed, and if there is no other question, the correct course is to direct them, as was done in this case, to find a verdict for the plaintiff.

Judgment affirmed.