Van Alstyne v. Dearborn

2 Wend. 586

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Marcy, J.

This case involves the consideration of the form and effect of the defendant’s plea of privilege. It is contended that this plea is defective in substance, because it did not state that the defendant was a practising attorney, or that he had, within one year from the time of the commencement of the suit against him, been engaged as an attorney in the prosecution of a suit in the supreme court. The common pleas, in reviewing the decision of the justice, were bound, by the express provision of the statute, (sess. 47, ch. 238, sec. 38,) to construe the plea liberally without regard to established forms or technical rules, and with a view to substantial justice between the parties; and they seem to have done so. The pleadings before a magistrate are generally, and probably were in this case ore terms, and the plea in question may not have been returned by him as fully as it was stated. Taking this into consideration, in conjunctian with the directions of the statute, we ought to regard the plea as unexceptionable in substance. The other point, that there can be no privilege where there is no arrest, is settled in Gilbert v. Vanderpool & Beekman, (15 Johns. Rep. 242.) The court there allow the plea of privilege to be effectual in a suit against an attorney prosecuted in a justice’s court by summons.

Judgment affirmed.