Yorks v. Peck

By the Court, Johnson, J. I have no doubt whatever, that a subpoena is a process, within the meaning of the statute under which this action is brought. (2 R. S. 287, § 70.) The language is “any process,” and was obviously intended to include any and every process which, by being served upon the party named in it, would give the court or officer before whom any proceeding was had, jurisdiction over such person. This would include a subpoena, which has always been regarded as a process. It was strenuously contended by the defendant’s counsel, upon the argument, that inasmuch as it was shown that the defendant had used the name of the attorney, wholly without his knowledge or consent, he was not amenable to the penalty prescribed by the statute. But this is of no consequence, except in a moral point of view. In that aspect it aggravates the offense, while it affords no shield to the offender. The obvious design of the statute was to protect persons from being vexed and harassed, by the use of an attorney’s name, for any of the purposes mentioned in the section, by any person other than the attorney himself, or by his general law partner, or a [353] clerk in his office, and to furnish them a remedy, if they were so injured. The attorney incurs the penalty if he knowingly permits such use of his name, while every other person, not falling within the exception, incurs it, by the use of the name for such purpose, whether the attorney knowingly permits it or not. The words “so use” manifestly mean using for the forbidden purpose, without the authority pertaining to a general law partner, or clerk in the office of the attorney, whose name is used. By no other construction could the mischief which the legislature had in view be remedied. The referee was, I think, entirely right in his interpretation of the section, and the judgment should be affirmed. [Monroe General Term, March 5, 1860. Welles, Smith and Johnson, Justices.]