The People against Rust

The People against Rust. An indictment against an attorney, for extorting more than his legal fee» must state the sum due, and the specific excess. The defendant had been convicted at the general sessions in Montgomery of extortion in his office, as an attorney of the Court of Common Pleas in that county, and sentenced to pay a fine of 100 dollars. *The cause was brought up on a writ of error. Emott, for the defendant, took a variety of exceptions. 1. That it is not shown with sufficient certainty before whom the court was held. The record states the indictment to have been “before the justices of the said peoph, in Montgomery aforesaid, and assigned to hear and determine 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 Bev. Laws, 395, s. 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 specifically shown. 4 Hawk. b. 2, c. 25, s, 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. 2. There has been a mistrial; there is no issue joined for the jury to try: the record is cometh, &c., “and having heard the said indictment read, the said Amaziah saith he is not guilty thereof." This applies to the indictment, and not to the offence. 3. 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 shown 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, at the court-house in the said county, the Court of Common 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 fourteenth day of February.” This is fatal. It is necessary to state that the sessions commenced on the day appointed *by law, and were continued [*135] to the day at which mentioned to have been hold-en. For this doctrine the court may refer to The King v. Fearnley, 1 D. & E. 316, where, and also in The Queen v. Shetford, 3 Ld. Raym. 41, they will see precedents in point. 4. 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, s. 128, is to the same point. 5. There is a total want of proper continuances. It appears by the act that the sessions are to be holden on the second Tuesdays 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, é Hawk. 170, b. 2, c. 27, s. 87, 89. Ibid. s. 90. This ia fatal, for a discontinuance is never aided by a-ppearance. Ibid. s. 102. 6. 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. Nothing material is to be taken *by intendment or implication. The indictment [*136] is laid under the fee bill, and, therefore, clearly bad, fur it has not charged the fact to have been knowingly or wilfully done. These are the' words of the statute, 2 Eev. Laws N. Y., 88, and are indispensable. To show that the very words of the law should be pursued, and that the court cannot, 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 then 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 impose.” 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, (1 Rev. Laws U. 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 necessary to lay the offence as done by color of his office, and for doing his office. This is an objection even at common law, for there it must be charged cabre officii. Bains’s Case, 6 Mod. 193. Hor 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 [*187] * 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 show how much was due. This is not done, and on that account therefore, the indictment must fall. Lake’s Case, 3 Leon. 268; Com. Dig. Extortion, C. Baynes’s Case, 2 Salk. 680; 1 Holt, 512, 517. The 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 sufficiently 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 peo ole. By 1 Edw. III. c. 16, they were made officers of the crown, but still nothing more than conservators, as they antecedently were. It was not till the 31th Edw. III. c. 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. 349-354. 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 particular *offence to have been delegated. The book refer- [*138] red to, (Hawk. b. 2, c. 25, s. 123, p. 3b'0,) does not make good the exception. There is no case decided that in an indictment at the sessions it is material to insert “ossigned to keep the peace?' This 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 mistrial, 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. Trcm. P. C. 8vo. translated edition, 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, c. 25, s. 54 ■ — 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 person, time, place, sum 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 Bust 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, s. 57. It is there said an indictment for extortion, charging a bailiff of a hundred with taking colore officii fifty shillings, is good, without showing for what he took it; especially after verdict. The law never can intend that every circumstance, whether it go to the charge or not, shall be enumerated. Those only are requisite which . are connected with the crime; such as to make up the offence. Here he is charged with taking more than due. It is not necessary to go [*139] *'into a calculation and state each sum. This may be necessary to be shown to a jury, but not to appear on a record. All the cases in Hawkins turn on the principle stated, and leave out indifferent matters, specifying only those that constitute the offence, and without which the prisoner would have been innocent. To the same effect is 4 Com. Dig. 391. Gf. Certainty to a general intent is sufficient. The same in Rex v. Brunsden, Cro. Car. 438; S. C. 448. To a general indictment against a sheriff’s officer, charging him with having taken twenty shillings, many exceptions were taken, but on this point not one. Rex v. Cover, 1 Sid. 91. S. C. 1 Keb. 357, the case cited from Hawkins. The court will find the same doctrine in 11 Vin. Abr. 471, pl. 4. 14 Vin Abr. 363. pl. 8. n. Rex v. Cover. Rex v. Reffit, 7 Mod. 220. But should it even be admitted that the charge is insufficiently madq niter a verdict it is too late to be insisted on. Every circumstance that might have been fatal on demurrer cannot be taken advantage of after trial and conviction. A verdict cures many defects; and particularly those which must have been removed before the party could have been found guilty. Rex v. Cover, cited in 3 Bac. Abr. 554. No authority has been adduced to show that it is necessary to set forth the specific charge. There is no book which will warrant it, and it is repugnant to the cases of Rex v. Brunsden and Rex v. Cover. If they are law, the exception is good for nothing. Besides, the overcharge might be a sum in gross; for a regular bill might be made out for 25 dollars, and 30 be received. This will evince that it might be impossible to point out the identical charge in which he was guilty of extorting. As to not stating the due fee, this has ever been considered as an immaterial allegation; it is only a circumstance attached to the offence, and it is enough if it appear in evidence. But though the omission be a defect, it is cured by the verdict. The case in 3 Leon. 268 (Balees Case) is the only one that can be found to maintain the exception. It seems, however, to have turned altogether on the words of a particular statute ; that of 25 Edw. III. c. 9. made against clergymen who took more than their fee for giving absolution. By looking at the act it will be found to have required a more than ordinary degree of "x'certainty in the proceedings, [*140] and the court probably felt themselves under its influence. That the statute demanded a greater precision than the common law must necessarily be inferred from its being passed; for had it been otherwise, it never would have been .enacted. This is evident from the decision in Rex v. Reffit and Pott's Case. In those a verdict was had on a general indictment, like the present, and the court held it well, saying they could not then go into the exception. In Rex v. Baines, as appears by Holt’s report of it, 512, there was no determination on the point now objected. It was an indictment for taking eight shillings for a sub poena of only twelve lines. The charge was “ for divers misdemeanors in the execution of his office in the articles following, viz.” So that the offences were laid under a videlicit, and a mere recital. Holt said that it was nor charged for what fees, whether as cleric, or in what capacity ; it was alleged to have been done in” the execution of his office. Powell, one of the judges who rvas against the articles, mentioned the case in 3 Leon, but the other judge took no notice of it, and it does not appear to have been at all rested upon. The court will never require impossibilities. If this objection should prevail, in many instances an attorney could never be indicted. Suppose he should refuse, a copy of his bill and destroy it. To be sure the court might order a copy to be produced: but then, no other than tlae party injured could call upon him; so that this would confine the proceedings to the person injured, and lessen the generality of the remedy. What if the attorney choose to be in contempt ? He would put himself beyond the ordinary course of law. In Rex v. Reffit, and Rex v. Cover, a fee was due for one of the services; it was not set out, and yet the conviction deemed good. For if stated it would not enable the court to form a better judgment of the nature of the offence; it would give them no greater information than they now have; unless every specific service is to bo charged, then what was due, and then what was received. The objection is not now tenable; for though it might have been good on demurrer, it is cured by the verdict, the inference being that all the facts were proved. [*141] From whence the conclusion must be that he *extorted, and this word is used in the charge. But, if these objections be done away, it is still urged that we have not laid it to have been done under color of his office, and that the money is not stated to have been received in the cause, or for fees. This latter exception is not true in fact. The indictment sets it forth with all convenient, though not with all possible, certainty. It states the suit • that Rust was the attorney for the plaintiff; that being so, and while prosecuting the suit for the plaintiff as such attorney, he extorted from one of the defendants eleven dollars more than were due in the suit, and more than were due to him, and the other officers and ministers of the court, for their respective services in the said suit. This, therefore, is substantially good. 1 Trem. 8vo. ed. of English translation, 115. 4 Went. Plead. 146. Colore officii, though inserted in the precedents in one or two reports, may be dispensed with. If it appear that the party charged with the offence was acting in his office, it is sufficient. In the part of Hawkins relied on, b. 2, c. 25, s. 57, after enumerating the technical terms that could not be omitted, it does not say that colore officii is indispensable. Rex v Baines states the objection, but it was not acceded to. The indictment says that he was acting as an attorney; this is fully enough. As to the argument that the proceedings are not good under either of the acts of the legislature, it may be very briefly answered, that it is immaterial whether it be so or not, if good at common law : to which its conclusion against the peace, &c. cannot be objected. The whole tenor of the indictment shows the money was taken by color of his office. It is doubted, however, whether an attorney-be such an officer as is inteuded by the act of the 7th January, 1788, “for prevention and punishment of extortion.” Attorneys are always stated to be officers of the court, and taken to be ministerial officers. They are licensed, regulated, and liable to punishment by the court, and therefore creatures of it. The act mentions sheriff, or other officer whatsoever, ministerial or judical; if, then, an attorney be an officer, the indictment will be good under that law, because the words knowingly and wilfully are not in it. The *fee bill (2 Eev. Laws, 88,) has these terms. It [*142] is not denied but that the indictment would have been more formal had it contained these words; yet in Hawk, b; 2, c. 25, s. 96, it is mentioned that if a statute contain the word unlawfully, you.must use it, or some'other tantamount. Therefore, it is not necessary to use every adjective the act may contain. The words of the indictment, and those of the law, when compared, will be found to be co-significant, The question then is, whether the words, taken collectively, do not sufficiently indicate that the money was received knowingly and wilfully ? whether they do not import as much ? This, however, is a public statute, and it is not necessary to recite it. This principle is equally applicable whether the fact charged be prohibited by one or more statutes. The averment, therefore, against the form of the statute is ex ábundanti, and not fatal. Two words are also said to be omitted, which are essential to the description of the offence of extortion. At common law these words are not required. This is a misdemeanor, not originating on any statute; it is the old common law offence; the words of the statute only show what would be extortion, and the court will please to observe that cabre officii can apply only where no fee is allowed at all; which is a different species of extortion from the present. That 'the judgment ought to have been for treble damages can be enforced as an argument against the proceedings only if, they be deemed to be on the statute, but if held to be at common law, it cannot prevail. The authority cited on the opposite side from Oro. Car. 448, is in point to this, though it has been mistaken by the party by whom used. Another reference may be made to show an exception cannot be taken for not giving damages. 2 Stra. 1048, 11 quad convictas est,” was adjudged enough, because every thing the law ordains is implied and results from the words; but what rests in discretion m.ust be inserted. Nor is it necessary, though the act order fine and imprisonment, that both should be inflicted; its being a fine only, does not vitiate. In General Gordon's Case the same thing was determined by this court. *There is no authority to support the objection [*143] on account of omitting to say “at the courthouse;” and that which is taken against the continuances is equally untenable. The sessions may adjourn to any day within the sessions in the same manner as they may make their process returnable; in conformity to which the continuance to the venire is so made. That the party aggrieved is not mentioned has already been answered, and of this the whole indictment is a complete refutation. If this indictment prevail, deleterious consequences, it is said, will ensue, and that indictments can be thus preferred will be a doctrine dangerous to the profession. There is no man, continued the district attorney, who more wishes its well being than myself, but neither its interest nor its honor require that practices like these should go unpunished. The court, therefore, though called on to require more certainty in this indictment than any other, cannot be influenced by the considerations suggested; it is not by law necessary, and that is sufficient. Emott, in reply. The court will perceive that the charge may affect the defendant most seriously; it is not only the fine he has to pay, but it may go to striking him off the rolls, and depriving him of the means of subsistence. The sum does not induce him to come here, but, that he might have the means of support. The indictment is not pretended to have been framed on a bill of Rust’s, but on an estimate made by the parties who met together, calculating what he ought to have received, and then, because in their opinion he had taken too much, they proceed in this rigorous manner. It perhaps would have been full as effectual for the purposes of justice if they had left the punishment to the court of which he is an attorney. Two kind of errors are insisted upon. One goes to the form, and that, we contend, is materially defective. This, an inspection of the record and authorities will prove. From Hawk. b. 2, c, 25, s. 123, and the cases there cited, two general rules may be drawn. That the nature of the commission ought to be set forth, and the authority to hold the court apparent on the record. It is not stated that the justices were of the peace for the county. Therefore, notwithstanding [*144] Blackstone, when we look at our law, we *find they must be of justices of the peace for the county. If you pursue the words of the indictment, the same want of 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 a magistrate from another county to go there, he would be a justice in, but not (^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 styled 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 commission, 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 shown that the court was holden on the Tuesday, and then adjourned; this not being done, the omission is material and not cured. Rex v. Warre, 2 Stra. 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 private law; it ought, then, to have appeared, that the court-house 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.(a) The court will recollect that this indictment was not necessary for the ends of justice, as the court of which Bust is an attorney, is competent to every purpose for which it can be asked/ The fee bill creates the offence, and from Jaclcson and Randall's Case, and Cox’s Case, before *cited, it is indispen- [*145] sable to pursue the words of the statute, knowingly and toilfully'' 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 color 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 attorneys 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 cabre 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 Amaziah Bust 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 show it. The excess might have been for a part of the debt. I£ 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 stand-[*146] ing, the eleven dollars *might be for interest. It is possible this extra sum might have been received, every word of the indictment in that respect true, and yet the defendant not guilty of extortion. He may have paid to another person; the sheriff may have demanded it; a thousand cases might be put to show the want of precision. The proceedings mention such, like services, without stating any before. Metcalfe. It sets forth that he obtained a judgment. Emott. Allowed; but that is not material. In 11 Mod. The Queen v. Clerk of Cumberland, the same observation waa made by Holt. He says, “he took ten shillings more than his fee; why this may be, for perhaps he had another demand upon himand the indictment held not good. The authority in 3 Leon., 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. Cur. ad. vult. а) This is necessary only in cases where the indictment, &a, is at a day without the period of the original sessions or jurisdiction. Therefore, under commissions of Oyer and Terminer, which are pro han vice, if there be an indictment found after the first day, the adjournments till the day on which the indictment was taken must be shown. 2 Hale’s P. C. 24. Sampson’s Case, W. Jones, 420. So, on an indictment at an adjourned sessions, the day the original sessions began must be stated. Rex v. Fisher, 2 Stra. 865, But this need not be done when the sessions is by statute for a certain length of time, within which the indictment is found, as was the case here; for by the 10th section of the act of the legislature, appointing the sessions in question, they are directed to be held from the Tuesday to the next Saturday, inclusive; a continuance, therefore, would be superfluous, because the whole sessions are, in law, but as one day. St. Andrews Holborn v. St. Clemer. Danes, 2 Salk. 606. The authorities from D. & E. and Ld. Raym. do not apply. The indictment went further, and said “ in and for the said county.” The case there put, is of leaving out the county. , The indictment there charged him with “extortion, viz: ttat ne exacted and forced from such person more than his just fees.” In the seventh edition the precedents are from. 353 to 360, inclusive. The extortion was under pretence of getting a discharge, not under color of office; therefore, could not he so laid. It is supposed Rex v. Luckup is the case alluded to. It does not, how* ever, «seem perfectly analogous. а) In this the learned counsel is mistaken; a justice of the peace, in the eye of the law, is a justice only in his own county. Wightman v. Mullens, 2 Stra. 1226. “ One of the king’s justices does not import one of the justices of K B., for every justice of the peace is a justice of the king. ’ That was an indictment stated to be held “ adfestum Epiphanii' instead ef Epiphaniae, and in the Roman calendar there is a saint Epiphanius. The act being a public act, the judges are bouid to notice the time, it being laid within the period ordained. Quwre, if this is to be done without action and trial by jury. Bu/mpsietf» (fosse, Cro Car. 448. Bao v. Lamferne, W. Jones, 319. [MAJORITY — Radcliff, J.] Radcliff, J. now delivered the opinion of the court. 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 indctment states, that he was an attorney of the court, &o. and that on the 12th of February, 1709, 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 [*147] 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 sheriff's fees, clerk's and icitnesses, &c. In these respects the indictment is not sufficiently particular; the offence is not alleged with sufficient precision and ccrfcainty; therefore, without examining the other objections, we are of opinion, that for this cause the judgment ought to be reversed. Judgment of reversal. Lewis Ch. J. absent.