Teel v. Yellis
New York Supreme Court
THIS was an action of debt, on the 8th section of the act, (24th sess. c. 87.) to prevent and punish champerty and maintenance, m which there is the following proviso : “That it shall be lawful for any person, being in lawful Possession, by taking the yearly rents or profits of any lands, tenements, or hereditaments, to buy or obtain, by any reasonable ways or means, the pretended right or title of any other person thereto.”
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THIS was an action of debt, on the 8th section of the act, (24th sess. c. 87.) to prevent and punish champerty and maintenance, m which there is the following proviso : “That it shall be lawful for any person, being in lawful Possession, by taking the yearly rents or profits of any lands, tenements, or hereditaments, to buy or obtain, by any reasonable ways or means, the pretended right or title of any other person thereto.” The declaration in this case did not negative the proviso ; and a verdict having been found for the plaintiff, a motion was made in arrest of judgment.
1Opinion of the CourtVan Ness, J.
The imperfect manner in which the case of Blasdale v. Hewitt,† is reported, must have given rise to the present motion. There some of the court are represented as saying, that because the declaration did not negative the qualifications of the proviso, it was therefore had. The reporter must have misapprehended the ground of that decision. Bonnet v. Hurd‡ contains a correct exposition of the law on this subject. The rule is this : If the proviso furnishes matter of excuse for the defendant, it need not be negatived in the declaration, but he must plead it. Such is the proviso in the present…
2Cited by15 opinions
- Rowell v. . JanvrinNew York Court of Appeals · 1896
- State v. MillerSupreme Court of Connecticut · 1856
- Trustees of the First Baptist Church v. Utica & Schenectady RailroadNew York Supreme Court · 1848
- State v. VanVlietSupreme Court of Iowa · 1894
- Whitecraft v. VanderverIllinois Supreme Court · 1850
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