ALBANY,

Auguft 1803.

V.

Ruft.

In this the

learned counfel

is mistaken, a justice of the peace, in the

eye of the law,

is a justice only

in his own county.

1

find they must be of justices of the peace for the county. If you pursue the words of the indictment the same want of The People precision is continued. Before Abraham &c. and others "justices of the said people in the county of Montgomery, "aforesaid." There is a wide difference between justices in, and justices of a county. Suppose à magistrate from another county to go there, he would be a justice in, but not of Montgomery, and could not have a right to be one of the sessions of that county. It does not follow that they are the right justices, because stiled justices of the people, The justices of this court are justices of the people, but they could not go to Montgomery and hold the sessions. Nor is this cured by its being stated "assigned to hear" &c. for if there was a special commission to try particular offences, they would under that be assigned to hear, and have authority to hear and determine according to their com mission, but not as justices of the peace of the county. No answer has been made to the exception against the time at which the court was holden: it should have been shewn that the court was holden on the Tuesday, and then adjourn ed, this not being done, the omission is material and not cured. Rex. v. Warre, str. 698.+ As to place there is a total failure. The act fixing the place at which the sessions are to be held, does not notice Johnstown: it mentions the court-house of the county: the location of that was a pri vate law it ought then to have appeared that the courthouse was at Johnstown, that the sessions were held there and not elsewhere; for, if the sessions were at Johnstown, and the court-house in any other town, the court could have no authority. Another idea presents itself respecting the adjournment; suppose it had gone beyond the week in which the second Tuesday fell, there would doubtless be a want of due continuances, and the contrary does not appear now. The court will recollect that this indictment was not necessary for the ends of justice, as the court of which Rust is an attorney, is competent to every purpose for which it can be asked. The fee-bill creates the offence, and from Jackson and Randall's case, and Cox's case, be

+ That was an indictment stated to be held ad feftum Epiphanii "itftead of Epiphaniae. And in the Roman calendar there is a Saint Epiphanius. The act being a public act, the judges are bound to notice the time, it being laid within the period ordained.

fore cited, it is indispensable to pursue the words of the statute, "knowingly and wilfully." The very charge must be specifically stated, for it is only in overcharges of a particular nature, mentioned by the act, that the offence is comprehended. The words of the law are, the sum of money herein before allowed." If then not in one of the sums before allowed, it is not an offence within the act. It might be an overcharge for a letter. Admitting the demand to be unreasonable, it is possible it was not within those mentioned by the fee-bill. If it was, then the conviction is clearly bad, for the court should have gone on to give treble damages. They are the first object of the law, as a compensation to the party aggrieved, the fine alone is a matter of discretion, the words are "and such fine to the "people of the state of New-York, as the court &c. shall "think proper." So by colour of his office, is equally necessary under the other act, for the words of the law have made it a constituent part of the offence; but it is conceived that attornies are not either ministerial, or judicial officers within the meaning of that law. If the proceedings are to be taken at common law, then it is indispensable that colore officii should be expressed. Baines's case is full to this. The manner of stating the charge, really amounts to nothing. That he extorted "eleven dollars over and above the fees "usually paid for such like services, and due in the suit ❝ aforesaid, and more than was legally due to the said Ama"ziah Rust and the other officers and ministers of the said

court, for their respective services in the said suit," over and above the fees usually paid; this does not say they were received in the cause, but only that they were received from one of the defendants. Should, however, the court imply the money was received in the cause, it does not appear to have been for costs: there is not a word to shew it. The excess might have been for a part of the debt. If the court adopt the common presumption that he was acting in good faith, though too much has been taken, it will not be supposed for fees; especially as they are stated not to be due, and the debt not alleged to have been paid. Nay, suppose the judgment had been long standing, the eleven dollars

Qu. If this is to be done without action and trial by jury, Bumpfteds safe, Cro. Car. 448. Rex v. Lamfane, W. Jones 379.

ALBANY, Auguft 1803.

The People

V.

Ruft.

ALBANY,

August 1803.

might be for interest. It is possible this extra sum might have been received, every word of the indictment in that The People respect true, and yet the defendant not guilty of extortion.

V.

Ruft.

He may have paid to another person; the sheriff may have demanded it; a thousand cases might be put to shew the want of precision. The proceedings mention such like services, without stating any before.

Metcalfe. It sets forth that he obtained a judgment. Emmott. Allowed; but that is not material. In 11 Mod. the Queen v. clerk of Cumberland, the same observation was made by Holt. He says "he took ten shillings "more than his fee, why this may be, for perhaps he had ❝ another demand upon him," and the indictment held not good. The authority in 3 Leonard, requiring the sum actually due to be specified, is acknowledged by the district attorney to be against him. The case in Holt is full for the purpose cited; the exceptions being confirmed by reason and settled adjudications, are well taken, and the indictment never can stand.

Per curiam. Delivered by Radcliff, justice. This is a case on error, from the sessions in Montgomery. The plaintiff was indicted in the sessions for extortion, as an attorney of the court of common pleas for that county. General errors have been assigned, and a number of objections taken to the indictment and to the record, some of which are objections of form, and others of substance.

For the purpose of the opinion we shall give, it will be sufficient to state the part of the indictment on which it is founded, and which we deem to be defective in substance.

The indictment states, that he was an attorney of the court, &c. and that on the 12th of February 1799, he obtained a judgment in favor of one Ichabod Roberts v. Alexander Campbell and John Hamilton, jun. and that he did extort and receive from the said Alexander, eleven dollars over and above the fees usually paid for such like services, and due in the suit aforesaid, and more than was legally due to him and the other officers and ministers of the said court, for their respective services in the said suit, &c.

The fact thus charged may be true, and the plaintiff may still be innocent of the offence. The indictment does not

specify how much was received on his own account and how much for the officers and members of the court. It may be that the excess on which the charge of extortion depended, was occasioned by the charges made by the other officers, and incorporated into his bill, as for sheriffs fees, clerk's and witnesses, &c. In these respects the indictment is not sufficiently particular, the offence is not alleged with sufficient precision and certainty; therefore, without examining the other objections, we are of opinion that for this cause the judgment ought to be reversed.

Lewis, chief justice, absent.

David Combs against Peter Wyckoff. THE present action was instituted to recover damages for not delivering a boat alleged to have been purchased by the plaintiff. Woods moved to set aside the report of the referees on an affidavit made by the attorney in the cause stating these grounds; that the witnesses of the defendant were seafaring men, and that there had been an express agreement between the deponent and the plaintiff's attorney, that the referees should not make up their report until the testimony on the part of the defendant could be obtained; yet notwithstanding this agreement, the referees had reported without waiting for the evidence on which the defendant relied; that a sum had been allowed the plaintiff for a loss, said to have been sustained by not being enabled to carry a quantity of wood to New-York, tho' it was proved and even admitted, that a part of the wood was previously sold by the plaintiff, and the residue might have been conveyed to New-York had he thought fit; that the referees were nominated by the deponent without the knowledge of the defendant, between whom and one of them a quarrel had taken place, which was not made up; that by the next circuit the defendant hoped to be able to procure testimony which would at least diminish the damages against him.

Skinner contra read his own deposition setting forth that he did not recollect the agreement above mentioned, and that at least it was not in writing; that the referees met several times, and were as often adjourned at the request of the defendant's attorney under the pretence of not being

ALBANY, Auguft 1803

The People

V.

Ruft.

If a party to a cannot produce his witnesses by hearing, a judge vacation, or

fuit referred,

the time of

at chambers in

the court, if

fetting, will ings. Defend stay proceedant's attorney having nominated referees,

and the party not having ob

jected, he can

not on that

ground, move report.

to fet afide a

able to procure the attendance of his witnesses; that at the last meeting the defendant's attorney declined summing up, and so far from any enmity existing between the defendant and one of his referees, the very party named as being inimical was his special bail.

Per curiam. Delivered by Livingston justice. The defendant moves to set aside the report of referees, alleging.

1. That it was agreed by the plaintiff's attorney, that no report should be made until the defendant's witnesses could be procured, which was afterwards disregarded.

This agreement not being in writing, and being denied by the plaintiff's attorney must be, laid out of sight. The court cannot, too frequently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar. Many mistakes, much misunderstanding and controversy will by this measure be avoided. In the present case it appears that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If they were abroad, he might have applied to the court, (for a term intervened between the appointment and report of the referees) for an order on them not to proceed for a reasonable time, which would have been granted, or a judge at his chambers would have ordered the proceedings to stay until application should be made to the court.

2. Another objection is, that a sum was allowed, which was not proved to be due. Of this allegation there is no satisfactory proof and therefore we can take no notice of it.

3. A third objection is, an enmity between the defendant

and one of the referees.

This reference it is to be observed was nominated by the defendant's attorney, and although he might have been ignorant of the quarrel spoken of, the defendant by his acquiescence in the appointment and submitting the cause to his decision, cannot now avail himself of this challenge. He should have applied to the court to remove him and appoint another. It is somewhat remarkable however that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause.