ALBANY,

Auguft 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

fuit referred,

the time of

ALBANY, Auguft 1803.

Wyckoff

Combs.

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 contro-versy 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.

4. The defendant states that "he can now introduce ❝evidence to diminish at least the damages reported." This! is very loose to say the least. Why was not this testimony obtained before? and to what extent will the damages be reduced, if it be offered now? Will it justify a diminution of only one dollar or less? If so "de minimis non curat lex,” and if the discovery had been made even prior to the report it would be no reason for disturbing it. Let the defendant take nothing by his motion and pay the costs of this appli

cation.

The People against Harry Croswell. THE defendant had been convicted before his honor chief justice Lewis at the last circuit, held in and for the county of Columbia, on an indictment for a libel on the President of the United States. The proceedings were originally commenced before the justices in the general sessions, from whence they were removed into this court, and went down to the circuit in the usual manner. On his conviction recognizances were taken for his appearance the first day of term to receive judgment, but his counsel considering the chief justice to have totally misdirected the jury, were rather at a loss how to bring the matter before this court. It was resolved by the bench that on the cause being brought up and sent down to the circuit, the suit, though in its nature a criminal prosecution, took the course of a civil action; that within the first four days of the term ensuing the conviction, a motion in arrest of judgment might be made, or the parties may make a case, and bring every thing fully before the court. This measure they advised, as being in the present instance more explicit, and it being adopted, they gave day till the fourth day of next term, taking recognizances from the defendant and two others for his due appearance, himself in 500 dollars, his sureties in 250 dollars each.

Lusher against Walton.

VAN VECTEN. This is a motion for a rule to refer. The affidavit states there are long accounts to adjust. Emmott. I must oppose it. The notice does not mention

× Ping

Arguments at length of Cerent

Notice to refer muft contain the names of referees, Mifapprehenfion

ALBANY,

Auguft 1803.

Luther

V.

Walton.

of a rule, or ignorance of a late determination may be offered as ex

cuses for not noticing for

the name of the referees, from Bedle v. Willet* decided last term this is necessary.

Per curiam. If the cause contains long accounts you cannot try it.

Spencer observed to the court that a cause could not be referred at the circuit; but from the case cited, the application might be renewed the next non-enumerated day.

Emmott. If the court say they will hear it, I shall waive

the first day of the objection.

term. If the ground of oppofing a reference be that a point of law will arife, it ought to be ftated expreffly what. and that it is "as advised by counfel."

* Ante. 7.

Per curiam. The omission must be accounted for, and therefore we cannot say we will hear it. All notices must be for the first day, if not, an excuse must be offered. But a party's mis-apprehending a rule has frequently been received as an excuse. The decision quoted has altered the former practice, and if the party will swear he did not know it, he may apply again.

Emmott waiving his objection as to the omission of the

names.

Van Vecten read his affidavit and another in support of it.

Emmott opposed the rule on a deposition by the plaintiff stating that an account between him and the defendant had been long ago settled, on which there appeared a certain ballance due, for which the present action was brought, and that he believed the matter in dispute involved points of law.

Per curiam. From the plaintiff's affidavit it does not appear there was a final closure of accounts, so as to entitle to oppose the rule; besides, there are two affidavits against him; the weight of evidence must therefore preponderate, and his single affidavit must give way. His second ground for resisting the application is, that on the examination questions of law will arise. This if properly stated, would have been a good reason for denying the rule; but on that point the affidavit is defective: it states his information and belief that it will arise; it ought to have said that "he is "advised by his counsel," and even then to have set forth the particular and specific point, to satisfy us that it did exist. For these reasons therefore, as the first taken ob