Strowell v. Vrooman

2 Cai. Cas. 107, 1 Cole. & Cai. Cas. 371

• Court: New York Supreme Court
• Decided: August 15, 1804
• Status: Published

Opinion

Per Curiam.

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.

(a) We cannot otherwise enforce our decision, and the Very point may come up again. We therefore must refuse taking up the case.

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.