ALBANY, Auguft 1803. The People V. Ruft. that the said Amaziah Rust be taken to satisfy the said peos ple of the said state for his said fine, and that he pay the same or stand committed to the common gaol of the said county, until the said fine is paid. DAVID CADY. IT was now brought before the court on a writ of error. Emmott, for the defendant, took a variety of exceptions. 1st. That it is not shewn with sufficient certainty before whom the court was held. The record states the indict ment to have been " before the justices of the said people in "Montgomery aforesaid, and assigned to hear and deter * mine divers felonies committed and done in the said county." But the act by which their authority is created, says The justices of the peace of the said counties," &c. shall have power to hold the general sessions. 1 Rev. Laws 295, sec. 6. This tribunal then, as stated, is not such a one as is created by the statute. It is a general principle, not here complied with, that particular authorities must be spe cifically shewn. 3 Hawk. b. 2. c. 25. sec. 123. That the nature of the commission ought to be set out and manifested, whereas here it was not apparent, and must be the result of implication alone. 2d. There has been a mis-trial; there is no issue joined for the jury to try; the record is cometh &c. a and having er heard the said indictment read, the said Amaziah saith he " is not guilty thereof." This applies to the indictment, and not to the offence. 3d. The time at which the court was held is stated so as to vitiate the indictment. It is said to have been on a Saturday; the first meeting ought to have been shewn to have been on a Tuesday, in conformity to the act, and the continuances from thence to the Saturday, regularly set forth. The words of the act are, "In the county of Montgomery, ac at the court-boure in the said county, the court of com ❝mon pleas on the second Tuesdays of February, June and "October, and the court of general sessions on the said "second Tuesdays of February and October." The caption is "at the general sessions holden on Saturday the four teenth day of February." This is fatal. It is necessary to state that the sessions commenced on the day appointed by law and were continued to the day,* at which mentioned to have been holden. For this doctrine the court may refer to 1 D. & E. 316, where, and also in 3 L. Ray. 41, they will see precedents in point. 4th. There is not sufficient certainty as to place. The indictment says "holden at the town of Johnstown," but the words of the act are, "at the court-house in the said county." The court-house is the very spot assigned by the law, and for what appears, it may not be in Johnstown. It should have been in the county of Montgomery, at the "court-house of and for the said county, in the town of "Johnstown." 4 Hawk. 77. b. 2. c. 25. sec. 128 is to the same point.‡ 6th. There is a total want of proper continuances. It appears by the act that the sessions are to be holden on the second Tuesday in February and October: the continuance on the record is to Wednesday the fourteenth day of October, on which day the venire is made returnable. The day. appointed by law was Tuesday; and that, in 1801, was the thirteenth, and not the fourteenth of the month. It was to the Tuesday, the thirteenth, that the court ought to have been continued, and from thence to the day of trial. 4 Hawk. 170. b. 2. c. 27. sec. 89. Ibid. sec. 92. This is fatal, for a discontinuance is never aided by appearance. Ibid. sec. 102. 6th. The indictment is wholly defective for want of certainty. The special matter of the whole fact must be set forth, with such precision, that it can sufficiently appear to the court that the indictors have not gone upon insufficient premises. 2 Hawk. 320. Nothing material is to be taken. • This is neceffary only in cafes where the indictment, &c. is at a day without the period of the original feffions or jurifdiction. Therefore under commiffions of oyer and terminer, which are pro hac vice, if there be an indictment found after the first day, the adjournments till the day on which the indictment was taken, must be fhewn, 2 Hal. P. C. 24. Sampfon's exle W. Jones 420. So, on an indictment at an adjourned fessions, the day the original feffions began must be ftated. Rex v. Fisher, 2 Str. 865. Eut this need not be done when the feffions is by ftatute for a certain length of time, within which the indictment is found, as was the cafe here; for by the 10th fection of the act of the legislature, appointing the feffions in queflion, they are directed to be held from the Tuefday, to the nex: Safurday inclusive, a continuance therefore would be fuperf.uous, because the whole feffions are, in law, but as one day. Saint Andrews Holborn v., St. Clement Danes 2 Salk. 606. The authorities from D. and E. and L. Ray do not apply. The indictment goes further, and f.ys, " in and fʊr the tald county." * The cafe ther: put, is of leaving out the county. T ALBANY, Auguft 1803. The People V. Ruft. ALBANY, The People V. Ruft. by intendment or implication. 2 Hawk. 347. The indictment is laid under the fee bill, and therefore clearly bad, for it has not charged the fact to have been knowingly or wilfully done. These are the words of the statute, 2 Rev. Laws N. Y. 88. and are indispensable. To shew that the very words of the law should be pursued, and that the court can not, from any circumstances, or by intendment supply the defect, there are two authorities exactly in point. Jackson and Randall's case, 1 Leach 305. Cox's case, ibid. 82. At common law this does not hold good, for there falsely will imply wilfully; but, under a statute, there can be no such implication. In such cases it is also necessary that the specific charge should be stated: in the present case it is necessary, not only for the sake of certainty, but because the statute declares the offence to be for taking a greater reward than it allows "for any of the services aforesaid." If the sum taken be not for the services "aforesaid," it is not an offence, and therefore it should be clearly stated. If the indictment be not for an excess in the money exacted for those services, it is bad. It should also have stated the party aggrieved by the crime, and for this reason; the statute is to him remedial, and gives him treble damages. A further defect is, that the judgment does not follow the act. The law ordains that the culprit "shall pay to the party "grieved treble damages, and such fine to the people of the "state of New-York, as the court shall think proper to im"pose." The sentence is only for a fine; totally omitting the treble damages to the party grieved, for whose compensation the act was principally intended. Under the statute for the prevention and punishment of extortion, I Rev. Laws N, Y. 120, the indictment can as little be supported. An attorney is not an officer within that law. An officer is an agent for the public, an attorney is only a private agent. If, however, he is an officer, then it was ne cessary to lay the offence as done by colour of his office, and for doing his office. This is an objection even at com mon law, for there it must be charged colore officii. Bains's case, 6 Mod. 193. Nor does it appear that the money was taken in the cause; if it was, it might not have been for costs. The charge therefore wants legal precision. The Queen v. the clerk of the peace of Cumberland, 11 Mod. 82. In that case it was laid as here,* and lord Holt held it insufficient. That it must be so, is evident from this, that it is necessary to shew how much was due. This is not done, and on that account therefore the indictment must fall. Lake's case, 3 Leon. 368. Comyns, Di. extortion, C. Baynes's case, 2 Salk. 680, 1. Holt 512. 517. Queen v. Clerk of Cumberland. 11 Mod. 80, 83. Metcalfe, district attorney contra. The first objection that has been taken, is to the caption, in omitting after the word "justices" to add "of the peace." This exception, it is presumed, cannot be supported. On considering the nature of the offence, and how it became cognizable before the sessions, the jurisdiction will appear to have been sufciently set out. The clause is descriptive of their sessions jurisdiction, and that was the only one they were then exercising. What are now called justices of the peace, assigned, &c. were originally no more than conservators of the peace, and chosen by the people. By the 1 Ed. 3. ch. 16. they were made officers of the crown, but still nothing more than conservators, as they antecedently were. It was not till the 34th Ed. 3. ch. 1. that they obtained their power to hear and determine, &c. It is from hence that all their sessions power was derived, and independent of that act they had not power to try. 1 Black. Comm. 349, to $54. As then the authority of justices does not enable them to hear and determine, &c. and this authority is the only one by which they have cognizance of the offence in the indictment, it comprehends all their sessions power on the point in question, and to state that is fully sufficient. It is not necessary to state more than will give jurisdiction over the offence. Suppose any other subsequent authority had been conferred, would it have been incumbent to set forth that? The words of the caption are, "assigned to "hear and determine divers felonies, trespasses and other « misdemeanors;" this then is a competent description of the persons before whom the indictment was tried. It states their mode of creation, and the jurisdiction of the particu Not exactly. The indictment there charged him with extortion, "viz. that be exacted and forced from fuch perfon, more than bis just fees.” ALBANY, August 1803. The People V. Ruft. ALBANY, Auguit 1803. The People v. Ruft. lar offence to have been delegated. The book referred to, In answer to the second objection that the issue was not properly joined and therefore a mis-trial it is useless to argue. Three precedents (and all others it is presumed are the same way) sufficiently prove that the due forms of law have been observed, Cro. Cir. Comp. 83. Trem. P. C. 8vo. translated ed. 117. Ibid. 133. As to the want of certainty in not setting forth the specific charge, and the fee due, this general principle may be replied. It is necessary only that the charge contain the manner and substance of the fact. Hawk. B. 2. ch. 25. sec. 54 to 68. The indictment does do all this, and when compared with others will be found to contain as much certainty as is common. It sets forth the persons, time, place, object taken, manner, occasion and intent. But, it is asserted, the party injured is not set forth. The reverse of this we contend to be the fact. Mention is made of the suit, specifying the time when judgment was obtained, naming the parties, plaintiff and defendants: that Rust conducted it as an attorney for the plaintiff and received so much money over and above what was due. This then is a sufficient description of the person from whom received, and the party aggrieved. The offence is stated to be that the eleven dollars were extorsively "exacted, demanded, extorted and "received over and above his fees." For this an authority may be found in Hawk b 2. c. 25 Sec. 57. It is there said an indictment for extortion, charging the bailiff of a hundred with taking colore officii fifty shillings, is good, without shewing for what he took it ; especially after verdict. The law never can intend that every circumstance, whe ther it go to the charge or not, shall be enumerated. Tho e only are requisite which are connected with the crime; such as go to make up the offence. charged with taking more than due. It is not necessary to Here he is |