People v. Walbridge

6 Cow. 512

Opinion

The Court

held the indictment to be good both in form and substance. They said, the intent with which an attorney or counsellor buys a note, need not be alleged in the indictment; nor need it be averred that a prosecution has been commenced on it. The act ofbuying constitutes the offence ;

(c) and on this being shown, it lies with the defendant to make out that he is within the proviso of the statute. The date, amount, time when due, &c. with other circumstances going to the question of intent, are, therefore, immaterial. We think the legislature intended to forbid the pu chase of notes, &c. by attorneys or coun-sellors, in all Cases, except those coming within the language or spirit of the proviso.

We have no doubt the act is constitutional; nor are the exceptions to the indictment, in point of form, well taken.

The intent of the legislature, as rendered by the court, if it require manifestation by any thing out of the plain language of the statute, is confirmed by a comparison of this statute, with one copied from it in relation to justices and constables. The two acts ar^ almost verbatim the same» {mutatismutandis^) with the addition of the distinguishing words in the latter, lf for the purpose of commencing any action thereon.” They run. thus :—

Slat. »ess. 41, ch. 259, $. Í. w That no attorney or counsellor 4t law of any court of record in this state, shall, directly or indirectly buy, Or be in any way or manner interested in buying any bond, bill, promissory note, bill of exchange, book debt, or other chose in action ; nor shall any such attorney or coun-sellor, by himself, or by or in the name of any other person, eifher before or after suit brought, lend or advance,” &c. (provision against procuring debts for collection by loan.)

Slat. srss. 43, ch. 150, s. 1.

<4 That no justice of the pence, or constable, shall, directly or indirectly buy or be interested in buying, any bond, bill or promissory note, bill of exchange, book debt, or ot.her chwse in action, for the purp se of commencing any action thereon ; nor shall any justice or constable, by himself, or by or in the name of any other person or persons, either before or after suit brought, either lend or advance,” Sec. (provision against procuring debts for collection, by loan.)

Every body will see that the passage of the last act is a direct legislative' construction of the first, as to the question of pu-pose or intent in buying the note, &c. ; and that this construction accords with that given by the .supreme court in the principal case.