ALBANY, tfat the sa;4 Amaziah Rust be taken to satisfy the said pw. pie of die said state foe his said fine, aad that he pay the same or stand committed to the common gaei of the ned county, until the said fine is paid.


FT was now brought before the court on a writ of ener.

Emmott, for the defendant, took a variety of exception*.

1st That it is not shewn with sufficient certainty before whom the court was held. The record state* the mdiftment to have been •« before the justices of the saktpetfk m «* Montgomery aforesaid, and assigned to hear and deter* ** mine divers felonies committed and done in the saMcem"tj." But the aA by which their authority is- created, ays ••The justices of the peace of the said comities" &e. sfell have power to hold the general sessions. 1 Rev. Law*39$, sec. 6. This tribunal then, as stated, is not such a one as k created by the statute. U is a general principle, art here complied with, that particular authorities mast bespeeifieaily shewn. S Bawk.b, 2. c. 25. see. 125. That Ae nature of the commission ought to be set out and nsanifos td, whereas here it was not apparent, and mast be the resalt of implication alone.

2dL There has been a mis-trial; there is no issue joined fee the jury to tryj. the record iff cometh &c. "and having «« heard the said indictment read, the said Amaziah saith he - is not guilty theretf." Thie applies to the mdMment, aw not to the offence.

3d. The time at which Ae court was held is- stated SO a to vitiate the indictment. It is said to have been on a Saturday j the first meeting ought to have been shewn to hate been on a Tuesday, in conformity to me aflj, and the ceotinuances from thenee to the Saturday, regularly set forthThe words of the a£t are, '* In me county of Montgomery, M at the court-house in the said county, the eourt of coat*• mon pleas on the second Tuesdays o£ February, June and

* October, and the court of general session* on the swl

* second Tuesdays of February and October." The captkm » « at the general sessions holden on Saturday me few« teenth day of February." This is fatal. It is necessary to state that the sessions commenced on she day appointed by h.-* and were continued to the day,* at which mention- ALBANY, ed to have been holden. For this do&rine the court may v^*~~.,-^_^ 5P&r a> 1 D. Sc E. 316, where, and also in 3 L. Ray. 41, The People they will see precedents in point. R"ft

4th- There is not sufficient certainty as to place. The"

indictment says "holden at 'thi'town of Johnstown,"f but the words of the a£t are, "at the court-house in the said county." The court-house is die very spot assigned by the law, and for what appears, it may not be in Johnstown. It should hare 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 die «ame 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 die 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 fata!, 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 facl 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 i« neeeflary only In cares where the indictment, &c. is at a day Wijkku the period of the original feflions nr jurifdiclion. Therefore uutfer eoimnif5< ns of oyer and terminer, which are pro hac vice, if there be Ib indi&ment found after the lirll day, the a.lj >urnmema till the day on which the indictment wai taken, muft be (hewn, a Hal. P. C. 24. Sampfon's ctie W. Jones 410. So, on an indictment at an adjourned fessians.tbc day the original feflions began mult he Hated. Hex v. hither, a Str. Jjo.c. I ut this, need not b: done when the feflions is by ltatute for a certain length of time, within which the indictment is found, as was the cafe here; tor by tlie roth fection of the act of the legislature, appointing the lemons in ■jutftion, they are directed to be held from the Tucfday. to the ne-x: Saturday inclnsive, a continuance th.-refjre would be fuperf.uous, beciufe roe whole fdhons arc, in law, but as one day. .Saint Andrews Holbirn v. St. Clement Danes 1 Salk. 606. The authorities from D. and E. and I.. Jfcqr- «io not apply. + Th» indictment gjes/urther, and f.ys, •' in and fur the lal-t county. •* The s»fe tier; ptf, i» of leaving ont the county.


ALBVNY, by intendment or implication. 2 Hawk. 347. The indict

Aujvft 1893.' r

»——., > ment is laid under the fee bill, and therefore clearly bad, for

The People jt y)as not charged the fact to hare been knowingly or wil-
Rnft. fuUy 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 30.5. 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 eases 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 par-
ty aggrieved by the crime, and for this reason; the statute
is to him remedial, and gives him treble damages. A fur-
ther defect is, that the judgment does not follow the aft.
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 com-
pensation the aft was principally intended. Under the
statute for the prevention and punishment of extortion, 1
Rev. Laws N. Y. 120, the indictment can as little be sup-
ported. An attorney is not an officer within that law. An
officer is an agent for the public, an attorney is only a pri-
vate 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*
case, 6 Mod. 193. Nor does it appear that die money was
taken in the cause; if it was, it might not have been for
costs. The charge therefore wants legal precision. The

Queen r. die clerk of the peace of Cumberland, 11 Mod. Ai.bany, 8S. fa that case it was laid as here,* and lord Holt held \^-~n^-*^/ k insufficient. That it must be so, is evident from this, Thc P^opk


thzt it is necessary to shew how much was due. This is Run.

act 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 ^ord "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 sufriendy set out. The clause is descriptive of their sessions ^uriiditxiou, 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 S4th 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 SS4. wAs then the authority of justices does not enable Aem 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. h 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 wo?&*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 «a<ftl/. The indUStihent -.hero chirgeJ him with extortion, » vi*. thit heeiactc4 sad forced from fu,ch ptrfou.more than D:j j.ilt lct«.

Ausuu'iNto3. lar offence t0 have been delegated. The book referred to,

«--;—. ~> Hawk. b. 2. c. 25, sec. 123. page 360, does not make good

1 he People ^ except;on. There is no case decided that in an indid

Ruft. ment at thc sessions it is material to insert assigned to keep

~~ the peace. The power is distinct from that to try, and

therefore on a case under the latter, the former need not

be specified.

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 fa£h Hawk. B. 2. ch. 25. sec. 54 to 68. The indidment 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. Thereverse of this we contendto 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 personfrom 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. Tr is there said an indictment for extortion, charging ttie bailiff" of a hundred with taking colore officii fifty shillings, is good, without f hewing for what he took it; especially after verdict.

The law never can intend that every circumstance, *'ie' ther it go to the charge or not, shall be enumerated. Tho e only are requisite which are connected with crime; such as go to make up the offence- Here ne charged with taking more than due. It is not necetssr.

« ForrigeFortsett »