source: Caselaw Access Project

author: Barnard J. Clerke, J.

license: Public Domain

text:
    Supreme Court. New York General Term,
    May, 1863.
    Sutherland, Gierke and Barnard, Justices.
    The People v. Louisa Nash.
    The city judge of the city of New York has no power to issue a writ of habeas corpus; under the statute of this State, the issuing of such writ is a ministerial and not a judicial act.
    In a temporary commitment by a magistrate, for further examination, on a charge of larceny, it is not necessary to state whether it is grand or petit larceny, or what articles are alleged to have been stolen. {Per Babnabd, J.)
    Eorih of proceedings to remove a decision by the city judge, on habeas corpus, ■ into the Supreme Court for review, on a certiorari sued out in behalf of the People.
    On certiorari to the city judge of the city of New York,, the following return was made:

      To the Honorable the Justices of the Supreme Court of the State of New York for the First Judicial District :

    In compliance with the within writ of certiorari to me directed, I do hereby certify and return to your honorable court that the papers hereto annexed, and marked respectively “ A,” “B,” “ b,” and “ 0,” are copies of all proceedings had before me in the within entitled matter, the originals of which are on file in the office of the warden of the city prison of the city of New York.
    JOHN H. McCUNN, Cüy Judge. ’ Dated New York, April 27th, 1863.
    NEW YORK SUPREME COURT.
    In the matter of The People of the State of New York. v.

    Louisa Nash.

      City and County of New York, ss:

    A. Oakey Hall, district attorney of the city and county of New York, being duly sworn, deposeth and saith, that he
    the great seal of the State, and that he be confined in the State prison, at hard labor, until such punishment of death shall be inflicted.”
    See, also, an interesting opinion by Campbell, J., in Pone v. The People, page 364 of this volume. is informed and believes that, on the 17th day of February last, a writ of habeas corpus was tested from the Supreme Court, allowed by and returnable before the Hon. John H. McCttnn, city judge of said city, a copy whereof is hereto annexed and marked “ A.” That to said writ a return was made, .of which a copy is annexed “ B.” That on said return the matter was heard before said city judge, and on the 18th day of February last an order was made by said city judge, a copy whereof is hereto annexed marked “ 0; ” and under said order, the said Louisa Hash, the party named therein, was discharged from custody, and a final adjudication was thereupon made by said city judge, and further saith not
    A. OAKEY HALL.
    Sworn to before me, this 27th / day of February, 1863, (
    Jesse 0. Vanderpoel, Commissioner of Deeds.

      The People of the State of New York, to the Honorable John H.
    McCunn, Oity Judge, of the city of New York, G-REEtinG:
    Whereas, we have been informed by the official affidavit of the district attorney of the city and county of Hew York,
    That a writ of habeas corpus was heretofore issued by you under your hand and seal, on behalf of one Louisa Hash, and directed to the warden of the city prison, in the city, and county of Hew York, and the said writ of habeas corpus required the said warden to have the body of the said Louisa Hash before you, the said city judge, to be dealt with according to law. And whereas, pursuant to the requirements of the said writ, the body of the said Louisa Hash was brought before you, and whereas a return was made upon the said writ, and that thereupon you proceeded to hear and determine the said'writ: and whereas such proceedings were had upon the said writ and said return that you, the said city judge did order, adjudge, and determine that the said Louisa Hash should be discharged from the custody and restraint of the warden of the city prison, and we, beings willing to be certified of such proceedings as we have had before you, do command and strictly enjoin you to certify and return those proceedings, with all things, papers and schedules thereto appertaining, unto our justices of our Supreme Court, at the city hall, in city of New York, on the first Monday in May next, at the General Term of said court, under your hand, as fully and amply as the same remain before you, so that our said justices may further cause to be done thereupon what of right, and according to law, ought to be done; and have you then and there this writ.

      Witness — .Tort att Sutherland, one of the justices of our [l. s.] ■ said court, at the city hall, in the city of New York, this 27th day of February, A. D. 1863.
    A. 0 AKE Y HALL, District Attorney.

    By the Court,
    H. W. Genet, Clerk.

    [indorsed.]
    I allow the within writ — New York, February 27, 1863.
    GEORGE G. BARNARD, Justice.

    “A.”'
    WRIT OE HABEAS CORPUS.

      The People of-the State of New York, to Charles Sutton, Nsq.,

    [L. s.] warden of the City Prison of the city of New York, Greeting :
    We command you that you have the body of Louisa Nash, by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatever name she shall be called or charged, before Hon. John H. MoOunn, city judge of the city of New York, at his office, No. 29 Wall street, in 'said city, forthwith on receipt of this writ, to -do and receive what shall then and there be * considered concerning him; and have you then and there this writ
    Witness, George G. Barnard, Justice of the Supreme Court of New York, the 17th day of February, one thousand eight hundred and sixty-three.
    H. W. GENET, Clerk.

    Chas. S. Spender, Attorney.

      [indorsed.]

      In re Louisa Wash.—Writ of Habeas Corpus.—Chas. S. Spencer, attorney.
    Allowed, this 17th day of February, 1868.
    JOHN H. MoOUNN, City Judge.

    “ C.”
    The within named, Louisa Wash, is hereby discharged, the commitment being illegal, it not specifying the crime for which she was committed, whether it is petit or grand larceny, or what articles it is alleged she has stolen. The commitment is clearly defective for these reasons. Mr. Blunt, assistant district attorney, appearing for the People; and admission of notice filed by Mr. Garvin, assistant district attorney.
    Wew York, February 18, 1863.
    JOHN H. MoOUNN, City Judge.

    “B.”
    COMMITMENT.—TEMPORARY.

      Oity and County of New York, ss:

    To the policemen and constables of the said city, and every, of them; and to the keeper of the City Prison of the said city.
    These are, in the name of the People of the State of Wew York, to command you, the said policemen and constables, and every of you, to convey to the said prison, the body of Louisa Wash, and deliver her to the keeper thereof; and you, the said keeper, are hereby commanded to receive into your custody, in the said prison, the body of the said Louisa, who stands charged before me, on the oath of Mary Murphy, with the offense of committing larceny, as a pickpocket, from the person of said Mary Murphy, And that you safely keep the said Louisa Wash in your custody, in the said prison, until the above said charge be investigated and determined by me, according to the statutes, in the case of arrest and examination of offenders, made and provided.

      Given under my hand and seal, in the said city, this thirteenth day of February, 1863.
    MICHAEL CONNOLLY, [l. s.] Police Justice.

    On discharging the prisoner, the following opinion was delivered by McCttnn, city judge:
    The commitment charges the prisoner, “on the oath of Mary Murphy, with the offense of committing larceny, as a pickpocket, from the person of said Mary Murphy,” but does not allege what was taken from the person of Mary by the accused, nor the time, place or any circumstance to show that the offense had been committed.
    It is necessary to set forth the particular species of crime alleged against the accused with' convenient certainty. And if it is an offense which is created by statute, it has been held that the terms of the statute should be pursued in describing it; and for this reason, that by using other words than those which the legislature has used, it may happen that the offense will not be sufficiently described. This was held in Rex v. Remnant (5 Term R., 169; 2 Leach R., 583), and is regarded as authority here.
    And so a commitment was held to be insufficient where it alleged that the prisoner had, “ with force and arms, made an assault on the prosecutor, with intent feloniously to steal and carry away from the person,” &c., because the description did not charge him with any offense within the statute.
    And so in this case. If the accused has committed any crime, it is probably that which is defined in chapter 508, section 33 of the act passed April 17, 1860: “Whenever any larceny shall be committed in said city and county,, by stealing, taking and carrying away from the person of another, the offender maybe punished as for grand larceny,” &c. And the language of this section should have been used, that we could have arrived at a certainty as to whether this was or was not the crime committed, as the other section of the act refers to where the attempt is made to steal as a pickpocket, &c.
    The commitment should also show whether the accused is charged with a felony or a misdemeanor. If it be for a felony, it must contain the special nature of the felony. (2 Wils. B., 158, 159 ; 2 Hale B., 122.) The crime should be specifically set forth for another reason, that if the party is brought before the court upon a habeas corpus, and no specific crime is alleged, or is so loosely set forth that the court cannot judge whether there is any reasonable ground for imprisonment, the party will be discharged. (2 Hawk. P. G., ch. 16, §16; 1 Ghit. Gr. L., 111.)
    It appears to me, that upon these proceedings, which are brought in compliance ,of article 2, page 883, 3 Revised Statutes, 5th edition, on habeas corpus, that I am bound, under this commitment, to discharge the prisoner from custody, though 1 am aware that it has been held in 5 Cow. B., 39, and in East B., 157, that if the commitment be defective, the Supreme Court will discharge the prisoner pro forma, and remand him upon a special rule; yet I am convinced that this is a mere matter of discretion, and the court will look into all the facts of -the case; and no person should be unlawfully deprived of liberty through the carelessness, ignorance or design of committing magistrates. For these reasons the prisoner must be discharged in this case, and an order entered accordingly.

      A. Oakey Hall (District Attorney), for the People.
    I. The writ should be quashed for want of jurisdiction.
    ' 1. The city judge at Chambers has no power to allow a writ of habeas corpus.

      a. It is true the law of his official creation confers upon him all the judicial powers vested by law in the recorder. (Laws of 1850, ch. 205; and 1 R. S., 5th ed., 397.)

      b. The' recorder exercised the duties of a habeas corpus commissioner, because, 1st (by 2 R. S., original paging, 564, and § 37 of the habeas corpus provisions), application for the writ could be made to any officer authorized to perform the duties of a justice .of the Supreme Court at. Chambers; and 2d (by 2 R. S., original paging, 281, §35 of General Provisions concerning certain judicial officers), every recorder of a city was authorized, “ by virtue of his office, to be a Supreme Court commissioner; ” and 3d, a Supreme Court commissioner was given the duties of a • Supreme Court justice at Chambers. (Id., § 20.)
    After July, 1847, the office of Supreme Court commissioner was abolished by the Constitution, .art. 14, § 8.
    The power, as a habeas carpus commissioner, of responding to the application for the writ, probably survived to the recorder. Or, in the language in Renard v. Hargous (2 Kern. R., 263), “the power was continued.'" But no analogy can connect the reasoning in the last named case, with an argument for the power claimed by the city judge, because, in the act reviewed by the court in Renard v. Hargous, the words, “perform the same duties," are additional to these, viz., “ possess the same powers.”
    Moreover, in the statute affecting the case at bar, the noun “ powers ” is limited by the adjective “judicial." (See this topic, examined in the report, “In re Powers of County Judges3 How. Pr. R., p. 32.)
    c. But the issuing of a writ of habeas corpus by an officer at Chambers is never a judicial act; and if it were sometimes one, nevertheless, the phrase judicial powers, in the act of 1850, does not include such issue by the city judge.
    1. The issue of a writ of habeas corpus by a judge at Chambers is not a judicial, but a ministerial act. (Per Kent, Yates v. Lansing, 5 Johns. R., 282.)
    “ The writ cannot be denied where the granting of it is made a matter of imperative duty by the statute.” (Hurd on Habeas Corpus, 225.)
    Kent, in his Commentaries, draws the same distinction between act ministerial, as of Chambers, and act judicial, as of banco, consequent upon the extension by the Revised Statutes of the penal provision from Chambers' refusal which previously existéd, to a court refusal. (1 Kent, 634; and Hurd, p. 226.)
    2. The phrase “judicial powers,” in the act of 1850, related to the powers of the recorder as judge of General or Special Sessions, and as a magistrate quoad justice of the peace.

      Bouvier defines “judicial power” as “ authority vested in the judges.

    A judge is an officer of a court during court hours.
    The habeas corpus statute uses both of these words, viz., judge and officer.

      ■ When the recorder allows a writ, he allows it as an officer, and not as a judge.
    In the familiar case of Barry v. Mercein (8 Paige, 55), the chancellor says: “ It is not material to inquire whether the chancellor, in allowing the writ of habeas corpus, acts as a mere commissioner under the statute, or as a court proceeding, etc., etc,” thus illustrating the distinction between officer and judge.
    Section 102 of the habeas corpus provisions draws distinction between judge, commissioner, and officer.
    See, also, section 4 of article 4 of chapter 815, Laws of 1844, respecting bail on habeas corpus in Hew York city.
    It may be argued that the fourth section of the act of 1850 negatives the idea that the powers of the city judge are limited merely to the duties of the recorder as & judge of courts, because-that section provides office accommodations for his attendance at all reasonable hours for the transaction of business, except when engaged in holding court.
    That argument I answer thus: If the issuing of a writ of habeas corpus was the only possible business which the city judge could transact out of court, then the argument now met might, by implication, arise. But the city judge, as judge, must, concurrently with the recorder, have chambers at which to hear complaints as examining magistrate; to entertain applications for stays of proceedings on bills of exceptions; to settle bills of exceptions on hearing; to settle interrogatories, etc., etc., etc.
    And it was for the purpose of transacting the above species of business that he required Chambers.
    II. If the city judge had jurisdiction under the writ, he erred in holding the commitment defective.
    1. The commitment showed that an examination was pending on charge of statutory crime, entitled larceny from the person, and “ stated with reasonable certainty.” (Bac. Abr., tit. Commitment M)

    2. The paper was what is best known in criminal law as a remand, as distinguished from a mittimus. (1 Archb. Cr. Pl., 36—41, Waterman's ed.)

    3. The city judge omits to draw a distinction between a remand and a final commitment or mittimus, and he appears to reason on defects, as if the process was a record of conviction.

    A remand is not a statutory, but a common law process. (Archb., supra.)

    And a verbal remand fo.r three days after warrant issued, has been held good, (lb.)

    4. The recital of offense was as strong as that held to be good in a warrant in Potter's Case (note to McLeod's Case, 1 Hill, 399, middle of page, and p. 401, bottom of page), or, as in the cases collected in Hurd on Habeas Corpus, 376-383.
    5. Will the court further examine the opinion by the light of the following cases:
    “ It is not necessary to allege the value of the property (i. e., in the warrant); the only effect of omitting to do so is, that the offense would be deemed petit larceny, and therefore bailable before any magistrate of the county.” (Payne v. Barnes, 5 Barb. R., 465.)
    “ The warrant, though very limited, is sufficient, if it recite the subject of the section.” (Sleight v. Ogle, 4 E. D. Smith, 445.)
    In ex parte Smith, (5 Cow. R.), the following remand was held sufficient'by the Supreme Court, after arguments by Van ÍTess Yates and Attorney-General Talcott:
    “Police Office, City op Albany.
    “ The gaoler will receive and safely keep for further examination, George W. Smith, who is charged with having been engaged in, or accessory to, a robbery of the U. S. mail.
    “ J. 0. COLB, Justice of the Peace."

    During the attorney-general’s argument, he said Ip. 275) “This commitment is merely for further examination. No

      formality is necessary in such a commitment. It may be by a verbal warrant; no crime need be specified. The order in question is in the usual form, and is sanctioned by authorities,” &c.
    III. It was the duty of the city-judge, although the commitment was irregular, to have bailed, and not have discharged. (See 58, Habeas Corpus Provisions.)

      C. S. Spencer, for the prisoner.
    I. The commitment is defective. It should have stated that some article, the subject of larceny, was taken. It should have stated some value. It should have stated when, to show that it was within the statute of limitation for the offense, and where, to show that the court had jurisdiction. This is not stating the cause of commitment “with reasonable certainty.” (Rex v. Remnant, 5 Term R., 169; 2 Leach, 583; 2 Wils., 158, 159; 2 Hale, 122; 2 Hawk. P. C, ch. 16, § 16; 1 Chit. Crim. Law, 111.)
    In the administration of criminal law, the forms of justice ought to be rigidly complied with, and no party charged with an offense should be held by virtue ■ of a commitment, that does not contain one of the requirements of the law.

    II. It was clearly a matter of discretion whether the judge would discharge the prisoner pro forma, and- then remand or take bail. Strictly it was his duty, in the language of the statute (3 R. S., 5th ed., p, 895, § 103), “ to determine whether the party is- lawfully committed.” He did determine the question upon inspection of the commitment, which was all there was before him.
    The prisoner hail been in prison from the 13th to the 17th day of February, 1863, before the writ was issued upon a temporary commitment. This was an unreasonable detention. The prisoner was entitled to a speedy examination. It was the duty of the judge before whom the prisoner was brought, to take into consideration this fact exercising his' discretion. The statute points out the duty of the officer before whom-the prisoner is brought; its language is:
    “If no legal cause be shown for such imprisonment, or restraint, a further continuation thereof, such court or officers shall discharge such party.from the custody or restraint under which he is held,”
    The cases in which the court or officer shall remand, are also pointed out by the statute, and are not left to arbitrary discretion. They are as follows:
    “ It shall be the duty of the court or officer forthwith to remand such party, if it shall appear that he is detained in custody, either,
    “ 1. By virtue of process issued by any court or judge of the United States Courts, in a case where such court or judge has exclusive jurisdiction; or,
    “2. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or,
    “ 3. For any contempt especially and plainly charged in the commitment,- by some court, officer or body having authority to commit for the contempt so charged; and,
    “4. That the time during which such party may be legally detained, has not expired.” (5th ed. R. S., vol. 3,p. 887, §§ 54, 55.)
    Certainly the officer could not have remanded where no legal cause for detention appeared on the face of the commitment. It was his duty, according to the letter and spirit of the statute to discharge.
    The cases cited by the prosecution do not apply to the facts as presented in this case. The case of Payne v. Barnes (5 Barb. R., 465), does not decide the question here. The court will see, by examining the case, that the time, the place and the amount were stated. In the commitment under consideration, none of these requisites are stated.
    In the case of Sleight v. Ogle (4 E. D. Smith R.), the question arose, as in the last case, in a civil suit, and the question here presented was not in issue; for in the case of Sleight v. Ogle, it appears that a complaint in due form was made before the* magistrate who issued the warrant, and the judge who delivered the opinion says: “ This was, prima facie, sufficient to authorize the arrest.”

      The case in 5 Cow. B. (ex parte Smith), is not applicable to the question here. He was a fugitive from justice; the offense one against the.laws of the United States: The counsel for the prisoner did not raise the question as to the validity of the commitment, neither did the court allude in any manner to that question.

    The inferences .to be drawn from the case are in favor of the point claimed by the prisoner here.
    The city judge has power to grant writs of habeas corpus.

    All judicial powers vested by law in the recorder of the city of Hew York, are hereby conferred upon such city judge; and said city judge shall, concurrently with said recorder, perform and discharge all judicial duties imposed upon such recorder. (Laws 1850, ch. 205, § 3, and 1 R. S, 5th ed., p. 397, §64.)
    Every county judge, within the county in which he shall have been elected, shall have power, and it shall be his duty, to perform all such duties, and to do all such acts, when not holding a County Court, as might have been done or performed by the laws in force on the 12th of May, 1847, by the judges of the Court of Common Pleas, or by any one or more of them, at Chambers or otherwise, when not holding court, or by any other judge being of the degree of counselor of the Supreme Court, and acting as a Supreme Court commissioner. (3 R. S., 5th ed., p. 306, § 32.)
    The judges of the Court of Common Pleas for the city and county of Hew York, elected pursuant to chapter 255 of the Laws of 1847, and the mayor, recorder and aldermen of the said city shall be judges of the Court of Common Pleas, of the said city and county. (3 R. S, 5th ed., 307, § 41.)
    Common Pleas may be held by. recorder alone. (Ib., § 42.) The judges of the Court of Common Pleas are, authorized to perform the duties of a justice of the Supreme Court at Chambers. (Laws 1847, p. 281, § 7; 1 Park. Cr. R., 138.)
    The same power is given to the judges of the Court of Common Pleas, in and for the city and county of Hew York at Chambers, as is given by any law of this State to the justices of the Superior Court of said city (3 R. S., 309, 5th ed.), and a judge of the Superior Court at Chambers, sitting as a Supreme Court commissioner, has power to issue a writ of habeas corpus. (1 Duer R., 709 ; 2 R. S, 281, § 33.)
    Recorders of cities and judges of the county courts, being of the degree of counselor-at-law, may perform the duties of a justice of the Supreme Court at Chambers. (2 R. S., 281, § 32 ; Opinion of Justice Willard, 3 How., Pr. R., 32 ; Op. of Jus. Harris, 3 Id., 40; Op. of Jus. Barculo, 3 Id., 172.)
    In which latter case Justice Barculo held:
    “ I concur fully with those of my brethren who hold that county judges are clothed with the power of performing certain duties of a justice of this court at Chambers. This power is given to those officers by the new judiciary act, if it is possible for legislative enactment to do so, &c., &c.”
    The city judge of the city of Hew York has the powers of a former Supreme Court commissioner. (Avery's Case, 6 Abb. R., 146.)
    The issue of a writ of habeas corpus by a judge at Chambers is not a mere ministerial act. It involves the exercise of judicial discretion.
    The writ of habeas corpus is a prerogative writ, not ministerially issuable, i. e., not issuable of course; and yet it is a writ of right on a proper foundation, being made out by proof. (3 Hill R., 649, Note pl. 2; see 16 Barb. R., 362.)
   Barnard J.

There are two questions presented in this case. One, whether the city judge has power to issue the writ of habeas corpus, and the other whether, if he has that power, he has made a correct decision in discharging the prisoner.

The power depends upon the construction to be given to the words “judicial powers,” contained in the act of 1850, creating the office of city judge. The portion of the act which confers on the city judge his powers and defines his duties is as follows: “ All judicial powers vested by law in the recorder of the city of Hew York, are hereby conferred on such city judge, and said city judge shall, concurrently with said recorder, perform and discharge all judicial duties imposed on such recorder.”

How, the only power which the recorder has to issue a habeas corpus is derived from the statute making him a Supreme Court commissioner. (2 R. S., p. 281, § 35.) By 2 Revised Statutes (p. 281, § 20), a Supreme Court commissioner had the duties of a justice of' the Supreme Court at Chambers, under certain limitations, which do not affect this question. By the habeas corpus provisions, application for the writ might be made to any officer authorized to perform the duties of a justice of the Supreme Court at Chambers. (2 R. S., p. 564, § 37.) Shortly, thus: Any officer authorized to perform the duties of a justice of. the Supreme Court at Chambers might issue the writ; a Supreme Court commissioner was authorized to perform such duties; the recorder was a Supreme Court commissioner, and, by virtue of being such, might issue the writ. It follows that the power and authority of the recorder is precisely that of a Supreme Court judge at Chambers.

It will now be considered whether there is any distinction between the term “ Chatnbers,” and the term “ vacation.” They are, in fact, convertible terms. Everything that can be done at Chambers can be done in vacation; and, on the other hand, everything that can be done in vacation can be done at Chambers. There can be no distinction made where the powers and duties are identically the same. The power of the recorder to issue a habeas corpus is, consequently, the same as that of a Supreme Court judge in vacation.

In the year 1810, Chief Justice Kent, in the case of Yates v. Lansing (5 Johns. R., 282), enunciated the doctrine that the allowance of the writ of habeas corpus in vacation is not a judicial act, but a ministerial one. If this doctrine is sound, it disposes of the case. Chief Justice Kent, at the time he enunciated the doctrine, had in view that one of the habeas corpus provisions which imposed a penalty for refusing to issue the writ; and he appears to base the doctrine on the principle that when the statute imposes the performance of an act in favor of a party upon a petition being presented drawn in conformity with specific directions contained in the statute itself, and prescribes a penalty in «favor of the party for a refusal to perform the act, then the act to be done is ministerial and not judicial. It is the very nature of a judicial power that those in whom it may be vested shall decide and act according to their.honest and fair judgment without-being liable to suitors or private parties for any error in their judgment; thus giving them free and uncontrolled exercise of judgment. If, consequently, in the exercise of a judicial power, they refuse to perform an act,.or commit any error in its performance, they are completely protected from being called to account by a suitor or private party. If the penalty given by the habeas corpus act was only to attach in cases where the writ was refused when it was legally applied for in the judgment of the officer to whom the application should be made, then the power .to issue the writ might be a judicial one; since then there •would be no restriction on the exercise of the officer’s judgment. But the provision would not then answer the end intended, as there could not, in any case, be a recovery of the penalty. The penalty, however, is imposed for refusing to grant the writ when legally applied for. If, then, the officer should make a mistake as to the writ being legally applied for, he would be liable to the penalty, even though the mistake were honestly made. The statute, in order to protect the officer, has clearly defined the prerequisites in order to obtain the writ. It prescribes • a petition, and defines with particularity its contents, and prescribes what persons are prohibited from prosecuting the writ, and then declares that -the writ shall be granted unless it appears from the petition or the documents accompanying it that the party applying is among those prohibited from prosecuting.

The provisions of the statute are so framed as to render it scarcely within the bounds of possibility that the officer could make any mistake as to whether the prerequisites had been complied with; and then to make him liable, in all cases, to the penalty for a refusal to issue the writ, unless he could, when sued, make it appear, to the satisfaction of the court before which, the case should be tried, that the writ had not been legally applied for. The provisions of the act thus deprive the officer of that free exercise of judgment which is an essential to a judicial power. The power in question must necessarily be ministerial. True, there is a species of judgment required in - seeing whether the petition contains the matters prescribed by the statute. But it is the same species of judgment which almost every ministerial power calls for. It is the same kind of judgment which the register of deeds is required to exercise in ascertaining whether an acknowledgment is in conformity with the statute. It will scarcely be contended that the duty imposed on the register, of seeing that every conveyance has been duly proved or acknowledged, vests in him a judicial power.

But this species of judgment is not that free and untrammeled exercise of judgment which appertains and is essential to a judicial power. Nor does the fact that judges and courts are empowered to issue the writ necessarily make it a judicial power; for there can be no doubt that the performance of an act, clearly ministerial in itself, may be imposed on a judge. The fact that a judge is selected as the minister to perform a ministerial act cannot change the nature of the act: that will remain the same as if a coroner or constable had been selected. There is no reason for dissenting from the principle laid down by Chief Justice Kent.

Having thus come to the conclusion that the power of the recorder to issue a habeas corpus is ministerial, it follows that it does not pass to the city judge under the term “judicial .powers.”

Upon the other question, the commitment is in the form sanctioned by authority, and is, on principle, amply sufficient.

The discharge must be vacated, and the prisoner remanded on the temporary commitment.

Clerke, J.

The act of 1850 (Laws of 1850, p. 388, § 3), creating the office of city judge in the city and county of New York, confers upon this officer all judicial powers vested by law in the recorder of the city of New York; “and,” it proceeds to say, “the said city judge shall, concurrently with said recorder, perform and discharge all judicial duties imposed upon said recorder.” I will not now inquire whether this act confers upon the city judge any other judicial powers than those belonging to the Court of General and Special Sessions, such as ■ the power to hold a Court of Common Pleas, &c. But, of course, there can be no question that the city judge shares no other powers with the recorder than those which are, in the strictest sense of the term, judicial.

Is the power to issue a writ of habeas corpus to inquire into the cause of a person’s commitment, detention or restraint of liberty, a judicial power? Undoubtedly, it is a power which is intimately connected with the administration of justice, and .so are all the various powers possessed and exercised by the numerous officers of every court of justice. The issuing of many writs and processes is vested in clerks and prothonotaries; and the power is purely ministerial. No power is judicial that does not imply discretion—the right to grant or refuse, according to what the officer deems right or just, and in conformity to the laws of the land. But the writ of habeas corpus, whether applied for in or out of court, has now become a writ of right; and, “if any court or officer, authorized to grant writs of habeas corpus, shall refuse to grant such writ, when legally applied for, every member of such court who shall have assented to such refusal, and every officer, shall severally forfeit to the party aggrieved one thousand dollars.” (3 R. S., 5th ed., p. 885, § 46.) As the law stood before the revision of 1830, when the application was made to the court, the members were not liable to this penalty: it attached only to those judges who refused to grant the writ in “ the vacation time.” (1 R. L., p. 355, § 4.) Consequently, in Yates v. Lansing (5 Johns. R., 282), the court decided that, when the application was made to the court,_ they acted judicially, and were not liable to the penalty; but when it was made to a judge in vacation, or out of court, he acted ministerially, and was liable. Kent, Ch. J., says: “The penalty to which the chancellor and judges are liable, is mentioned in the 4th section of the act; and that is given against them by name, and only for. their refusal, in the vacation time, to allow a writ of habeas corpus, when duly applied for. The chancellor and judges may refuse such a writ, at their discretion, if applied for in term time, and the penalty will not attach. It is only when they refuse, in a mere ministerial capacity, to allow a writ, that they are made responsible. The allowance of a writ in vacation is not d judicial act.” So that, if the penalty was not extended to the court by the revisers of 1830, still the act of the city judge in issuing a writ of habeas corpus would not be a judicial act: it would be purely ministerial. At no time since the act of 1813 could a judge out of court refuse the writ; and, therefore, in allowing it, he acted in a mere ministerial capacity.

The act of 1850, creating the office of city judge, having e conferred on him only the judicial powers vested in the recorder, he cannot exercise powers that are not judicial, and which are purely ministerial. In doing so, he attempts to stretch his authority beyond the limits which the statute prescribes.

The proceedings before the city judge should be set aside, and the relator, Louisa Nash, should be remanded on the temporary commitment.

Discharge vacated, and prisoner remanded.


author: Clerks, J. Sutherland, P. J. (dissenting).

text:
    Supreme Court. New York General Term,
    May, 1863.

      Sutherland, GlerJce and Barnard, Justices.
    The People v. Julius J. Smith.
    Form of an indictment for obtaining money by false pretenses.
    It is no defense to a charge of obtaining money by false pretenses, that the person from whom the money was obtained by the prisoner, was, at the time, indebted to the prisoner to an amount equal to the sum obtained by the false representation, and that it was the intention of the prisoner to apply such money on such debt. SuTHEBEAlm, J., dissented.

      The following indictment for obtaining money by false pretenses was found against the prisoner.

      City and County of New York, ss:

    The Jurors of The People of the State of Hew York, in and for the body of the city and county of Hew York, upon their oath, present:
    That Julius J. Smith, late of the first ward of the city of Hew York, in the county of Hew York aforesaid, well knowing that Rachel Stoesser, hereinafter mentioned, was then and there a customer, and in the habit of dealing with the firm of J. Riegelman & Deffaa, dealers in flour, doing business in said city, on the twenty-eighth day of October, in the year of our Lord one thousand eight hundred and sixty-two, at the ward, city and county aforesaid, with force and arms, on the day and year last aforesaid, with intent feloniously to cheat and defraud said Rachel, did then and there feloniously, unlawfully, knowingly and designedly, falsely pretend and represent to said Rachel, that he, the said Julius, was then and there a salesman and agent for the said firm of J. Riegelman & Deffaa, and that he, the said Julius, had then and there procured to be sent to said Rachel by said firm of J. Riegelman & Deffaa, ten barrels of flour and one bag of meal; and that he, the said Julius, had'then and there full power and authority to collect and receive the price of said flour and meal from the said Rachel. And the said Rachel, then and there believing the said false pretenses and representations so made as aforesaid, by the said Julius, and being deceived thereby, was induced, by reason of the false pretenses and representations so made as aforesaid, to deliver and did then and there deliver to the said Julius the sum of eighty-two dollars and seventy cents in money, of the value of eighty-two dollars and seventy cents of the proper moneys, valuable things, goods, chattels, personal property and effects of the said Rachel, and the said Julius did then and there designedly receive and obtain the said sum in money of the value aforesaid of the said Rachel, of the proper moneys, valuable things, goods, chattels, personal property and effects of the said Rachel by means of the false pretenses and representations aforesaid, and with intent feloniously to cheat and defraud the said Rachel of the said sum in money of the value aforesaid.
    Whereas, in truth and in fact, the said Julius was not then and there a salesman and agent for the said firm of J. Riegelman & Deffaa and had not then and there procured to be sent to said Rachel by the said firm of J. Riegelman & Deffaa, ten barrels of flour and one bag of meal; and whereas, in truth and in fact, he, the said Julius, had not then and there any power and authority to collect and receive the price of said flour and meal from the said Rachel. And whereas, in fact, and in truth, the pretenses and representations so made as aforesaid by the said Julius to the said Rachel, were in all respects utterly false and untrue, to wit, on the day and year last aforesaid, at the ward, city and county aforesaid. And whereas, in fact and in truth, the said Julius well knew the said pretenses and representations, so by him made as aforesaid to the said Rachel, to be utterly false and untrue at the time of making the same.
    And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Julius J. Smith, by means of the false pretenses and representations aforesaid, on the day and year aforesaid, at the ward, city and county aforesaid, feloniously, unlawfully, falsely, knowingly and designedly, did receive and" obtain from the said Rachel the sum in money, of the value aforesaid of the proper moneys, valuable things, goods, chattels, personal property and effects of the said Rachel, with intent feloniously to cheat and defraud her of the same, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    A. OAKEY HALL, District Attorney.

    To this indictment, a plea of not guilty Was put in, and the issue so joined came on to be tried at the Court of General Sessions of the Peace in the city of New York, before John T. Hoffman, recorder, in December, 1862.

      Rachel Stoesser, the complainant, testified: That she was engaged in carrying on the business of a baker in Delaney street, in the city of New York, on her own account and with her own means, in the absence of her husband, who had left her; that on the 28th October, 1863, the prisoner called at her place of business and sold her ten barrels of flour and one bag of Indian meal, and said he would send the flour up the same evening; that the prisoner was, at the time, clerk or salesman for Eiegelman & Deffaa; that between four and five o’clock on the afternoon of the same day, the prisoner again came there and asked her if the flour had come, and she answered “ no; ” that he then said the carman left the store with him, and had the flour to bring to her, and was coming to her shop with it, and wanted the pay; that she then paid the prisoner $82.75 for the flour, expecting the flour would come soon; that he gave her a receipt for. the money; that the flour did not come that night, and never came; that next day she went down to Eiegelman’s and asked why the flour did not come, and the bookkeeper told her no flour had been ordered for her.
    On her cross-examination, she stated, among other things, that when she went down to Eiegelman’s she saw Mr. Eiegelman and a clerk, and he said, “I am sorry such a thing has happened to you; so long as we have not the money we cannot send you the flour; ” that she had never dealt with Eiegelman directly, but always through the prisoner, Smith, who said he was clerk and salesman for Eiegelman; that she had previously purchased flour from Eiegelman, through Smith, four times; that when she first bought of him, he told her her husband owed him over $100, and she said to him, Mif my husband owes you anything and should not come back, I would pay him $5 at á time if I could spare it.
    The witness also testified that she had paid Eiegelman & Deffaa for all the flour she had previously had of them-.
    On further direct examination, she testified that prisoner said the flour had started from the store of Eiegelman & Deffaa, 315 Washington street, when he, prisoner, left the store to

      come there, and that he was their clerk; that she had been in business on her own account and with her own capital about six years; that her name is Eachel Stoesser, and her husband’s Frederick Stoesser.
    Defendant’s counsel offered to show that Frederick Stoesser was insolvent, and that the ownership of the store had been frequently transferred by him to the wife, and again by her transferred to him, by conveyances fraudulent as to creditors.
    The court refused to permit such testimony to be given, to which refusal counsel for defendant excepted.

      John Biegelman was then called as a witness on behalf of the prosecution, and testified as follows :

      Q. You are in business in this city? A. Yes, sir.

      Q. What is your firm ? A. John Eiegelman & Deffaa.

      Q. Where did you carry on your business ? A. 315 Washington street.

      Q. Do you know the prisoner at the bar? A. Yes.

      Q. Do you know Mrs. Stoesser ? A. Only since this matter has gone on.

      Q. State whether Smith sent from your store, on or about the 20th of October, any flour for her ? A. I do not know anything about it.

      Q. Did any flour ever go from your store ? A. I don’t know anything about this matter.

      Q. Don’t you know whether any flour was sent from your store to this woman on the 21st of October? A. I cannot, tell; I was not there; I am very seldom in the. store.

      Q. Did you see this woman when she called next day ? A. I did not.

      Q. Did you ever see her at all ? A. The first time I have-seen her was in Essex market.
    ' Q. Was he a clerk in your store? A. He is a salesman on his own account.

      Q. Was he your salesman ? A. Yes.

      Q. When did he become your salesman? A. About six months ago.

      Q. Under a stated salary ? A. No, sir.

      Q. Staté what the arrangement is. A. I give him the flour for so much; he sells on his own account, and has to pay for it

      Q. He has an arrangement with you? A. Yes, sir; he. must pay for it.

      Q. That’s what you mean by being your clerk ? A. Yes, sir.

      Q. Do you know flour that’s sent from your store ? A. I do not.

      Q. Who has charge of that branch of the business ? A. Our bookkeeper (Rudolph Cameron) and partner.

      Cross-examination:

      Q. That is the blotter of Riegelman & Deffaa (showing witness a book) ? A. Yes, sir.

      Q. That last entry on the page is in Smith’s handwriting? A. I ain’t sure of it; I guess our bookkeeper would know.

      Q. When Smith bought flour of you, to whom did you look for pay ? A. To Smith.

      Q. You did not look to Mrs. Stoesser at all? A. No, sir; never do.

      By the court: Instead of being your salesman, he bought flour of you? A. Yes, sir.

      By counsel for defendant: He had full power to receive the money? A. Yes, sir.

      By district, attorney: Did you sell and charge it to Smith, and look to him for pay? A. Yes, sir,

      By counsel for defendant: He has a right to deliver any flour he likes from your store? A. Yes, sir.

      By a juror: Are these your bills (showing bills) ? A. They are.

      Rudolph Cameron was then called as a witness on behalf of the prosecution, and after being duly sworn, testified as follows:

      Q. Are you in the employ of the firm of Riegelman & Deffaa?. A. Yes, sir.

      Q. Were you on the 28th of October last ? A. I was.

      Q. What is your business there ? A. Bookkeeper.

      Q. Do you know every sale made? A. I know in the ' books, but not in the other book.

      Q. You take an account of flour shipped from your store ? A. Yes, sir.

      Q. And to whom it is shipped? A. Yes.

      Q. Do you know whether, on that day, flour was sent to Mrs. Stoesser ? A. Some ordered at 32 D.elancey street, but it was not sent.

      Q. Was it not ever sent? A. No; not this lot.

      Gross-examination:

      Q. You say this flour was ordered, but not sent; state what steps were taken. A. Smith came in the evening, and said he did not want to send it; he said he had got some of his old debts.

      Q. What had been done towards sending this flour; had it been picked out? A. It was.

      By the court: Had this particular flour been ordered? A. Yes, sir.

      By counsel for defendant: These ten barrels of flour had been picked out ? A. Yes, sir.

      Q. What directions had been given with regard to sending this flour? A. 32 Delancey street.

      Q. How was it to be sent ? A. I should send it that afternoon.

      Q. By the cartman ? A. Yes, sir.

      Q. Was the cartman there at the time it was ordered? A. No; I guess he was over in Brooklyn ; I ain’t quite sure.

      Q. What time did he come back ? A. Pretty near night.

      Q. Had Smith got back then? ' A. I guess Smith came' back between four and five o’clock.

      Q. What did he say ? A. He crossed the bill and said, “ Don’t send the flour until I get some of my old debts;”

      Q. Look at those marks across the face of the order, and see if these were the marks he made at the time ? A. Yes, that is his handwriting.

      Q. Did he state what had happened ? A. Not at that time, but the day after.

      Q. Was any one present besides you and Smith? A. Mr. Deffaa.

      By a juror: Did you make out the bill ? A. No.

      Q. Who made it out ? A. That is Smith’s handwriting.
    The testimony for the prosecution was here closed.

      Christian Spearenhurger was called as a witness on behalf of the defense, and after being duly sworn, testified as follows:

      Q. Where do you live, and what is your business ? A. I live 63 Market street, and am a cartman.

      Q. Have you been in the habit of delivering any flour for Julius J. Smith to Mr. and Mrs. Stoesser? A. I have.

      Q. From what time to what time ? A. From the 26th of December, 1861. I have taken them the first load up to about, I think it was March.

      Q. To whom was the flour delivered? A. To Mrs. E. Stoesser, 32 Delancey street.

      Q. How many times do you think during that period you delivered flour to her?

      By court-. “ Concede that she owed him money. A man can’t collect a debt by false pretenses.”

      Philip Deffaa, was then called as a witness on behalf of the defense, and after being duly sworn, testified as follows:

      Q. You are a member of the firm of Eiegelman & Deffaa? A. Yes, sir.

      Q. Do you know Smith at the bar? A. Yes, sir.

      Q. On the 28th of October, was he employed by you ? A. No, sir; he buys the flour of us and sells on his own hook.

      Q. Did his customers come near you, or did they deal with him ? A. No. They dealt with him; he could pick out the flour that he wanted; his price is made; we have a certain profit, and he sells the flour.

      Q. He is authorized to sell flour from your store ? A. He can sell flour from our store when he buys it.

      Q. He didn’t have to pay the money for it, in the first place, before he delivered it ? A. No, sir.

      Q. Do you remember his ordering flour for Mrs. Stoesser ? A. He did; a load of flour; I believe it was the day before the lady came to the store.

      Q. Was this' flour picked out, so that it could be sent ? A. Yes, it was on the book..

      Q. What was the custom with regard to that flour ? A. Whether Smith would be there or not, the flour would be sent. We had no time to send it. Smith came in and said: “ Have you sent this flour? ”,' I says, “ I have not.” “Very good,” said he; “I won’t send it.” The woman made a statement to me about other flour dealers. I did not take particular notice. I let it go so. The next day or two days after, this old lady came in and asked me whether Smith ordered the flour. I told her “no.” I did not want to interfere with the lady. I did not know anything about it, and the flour was not sent. We left the flour in the store.

      Q. What did-the lady say ? A. She said they owed Smith money, when her husband was there; her husband left her and went away and she cannot pay it— that was in the door of the store.
    • Q. What did you say to Smith at the time he ordered the flour to be stopped ?
    The district attorney objected to this question. The court sustained the objection and refused to allow the question to be answered; to which decision counsel for defendant excepted.
    Counsel for defendant offered to give evidence as to what transpired between the defendant and the witness Deffaa before defendant stopped the flour. The court refused to allow such evidence to be given; to which decision counsel for defendant excepted.

      Q. Was Smith at this time authorized to receipt your bills ? A. I do not know; Mr. Eiegelman made this arrangement with Smith.

      Q, Is Smith still with you under the same arrangement ? A. Yes, he is there to-day.

      Gross-examination:

      Q. The flour never left the store, did it? A. No, sir.

      By the court: Q. Never was put on the cart? A. No, sir; if he got back a little later, it would have been sent.

      By a juror: Q. Look at all these bills; do you know these bills ? A. I do, sir.

      Q. Did you authorize Smith" to make out that bill ? A. I find Mr Biegelman made the cohtract with Smith in the first "place.

      Q. Do you know that handwriting (showing "a paper) ? A. I do not; it must be Smith’s; it ain’t our bookkeeper’s.

      Q. Do you know whose it is? A. I think it is Smith’s.

      Q. Did you authorize Smith to have any of your billheads to make out bills on ? A. I do not.

      Q. Do you know whether he has any authority from your partner to do so? A. I think he has, for he would not allow him to do so if he had not; that is my opinion.

      By counsel for defendant: Q. Look at that entry; do you know anything about that delivery of flour ?
    Objected to by the district attorney.
    Counsel for defendant proposed to show that the defendant had authority to act as clerk- and salesman.

      Witness: He has authority to send flour, as a matter" of course.

      By the. court: Q. You sold him all the flour he wanted? A. Yes, sir.

      Q. Is he in your store most of the time ? A. Sometimes two or three hours; he generally comes there every day; when the lady came in that day he was not there.
    Other witnesses were examined on the part'of the defense, and after the counsel had addressed the jury,
    The court charged the jury as follows, viz.:
    By the laws of this State, every person who, with intent to cheat or defraud another, designedly, by any false pretense, obtains from such other any money, personal property or valuable thing, is guilty of a crime, and liable to punishment. In order to convict any one of “ obtaining goods by false pretenses,” the jury must be satisfied, upon the evidence, that the party accused with intent to cheat and defraud, has made some false representations of some matter of fact to induce the person to whom it is made to part with some property or valuable thing. The representation must be such as would be likely to be believed and acted on by a person of ordinary caution ; and such person must have parted with his property upon the belief that the representation was true. It is not necessary that all the pretenses charged in the indictment should be proven to be false. It is sufficient "if any one of them is proven to be false, if such pretense induced or had a material effect in inducing the prosecutor to part with his property.
    To the last proposition the defendant’s counsel excepted.
    The court further charged the jury: That applying these propositions to the present case, if the jury were, upon the evidence, satisfied beyond all reasonable doubt that the defend • ant, with intent to deceive and defraud Mrs. Stoesser, falsely represented to her that he was the clerk of Riegelman & Deffaa, and that the flour which he had in the morning, as such clerk, sold and was to deliver to her, had left the store of Riegelman & Deffaa on the cart at the same time he had left, and was then on its way to her store, and -that she, relying upon the truth of such representations, at his request gave to him the money for the purpose of paying for the flour, they might convict the defendant.
    To which proposition the defendant’s counsel excepted.
    The court further charged that it was not necessary, in order to justify such conviction, that it should appear that all of such representations were false. It was enough if the falsity of either one of them was established, if each one had a material effect in inducing Mrs. Stoesser to part with her money.
    To which proposition defendant’s counsel excepted.
    The counsel for defendant requested the court to charge the jury, that upon evidence in the case, the defendant was entitled to an acquittal.
    The court refused so to charge, and to such refusal defendant’s counsel excepted.
    The counsel for defendant also requested the court to charge the jury, that a false representation, by which a man may be cheated into doing his duty, is not the subject of punishment under an indictment like this.

      The court charged that this, as an abstract proposition, was true, and that it had been decided in this State that where one held the promissory note of another, which was due and unpaid, and faisely represented to the debtor that such note was lost or burned, and thereby induced him to pay the same, that such false representation did not render him liable to punishment under the statute relating to obtaining goods by false pretenses.
    And upon this point the court further charged, that there was a difference between the case so decided and the case then on trial; that the defendant, if he made the false pretenses before mentioned, and thereby induced the prosecutrix to give, him the money for the flour, could not shield himself from criminal responsibility by showing that his secret intention, not communicated to her, was to apply the money to the payment of a debt due or claimed to be due from her to him; that if she had parted with the money to pay the debt, he could not be convicted, no matter how false the representation which induced her to do it; but it was not so if the money waá parted with for another purpose, viz., to pay for the flour which he represented was then on its way to her store.
    To all which defendant’s counsel excepted.
    Upon this point, the court, illustrating the same, added as follows: “ If the foreman of this jury owed me a debt, and I, being on intimate relations with his family, went to him and falsely told him that his wife had requested me to come to him and ask him to give me for her a certain sum of money, which she wanted to use, and be gave me the money, I could not shield myself from responsibility by showing that it was a trick of mine by which I intended only to get money enough in my hands to pay me what was claimed by me to be justly due me. It would be different if I persuaded him to pay me my debt upon some false statement made by me to him to induce him to do so.
    To all which defendant’s counsel excepted.
    The defendant’s counsel also requested the court to charge, that if the jury believed, from the evidence, that defendant was salesman and agent for Eiegelman & Deffaa, and had authority from them to collect and receive money for the ten barrels of flour and one bag of meal, the prisoner must be acquitted.
    The court refused so to charge, and defendant’s counsel excepted.
    The defendant’s counsel also requested the court to charge, that if any of the pretenses alleged in the indictment to be false were, in fact, true, the prisoner must be acquitted.
    The court refused so to charge, and defendant’s counsel excepted.
    , The defendant’s counsel also requested the court, to charge, that if the jury find that the prisoner believed any one of such pretenses was true, that he must be acquitted.
    The court refused so to charge, and defendant’s counsel excepted.
    The defendant’s counsel also requested the court to charge, that to justify a conviction, the jury must be satisfied, from the casé, not only that the pretenses were all untrue,' but that the prisoner knew they were all untrue.
    The court refused so to charge, and defendant’s counsel excepted.
    The defendant’s counsel also requested the court to charge, that if the prisoner believed that the pretenses by which the complainant was deceived were true, he must be acquitted.
    Upon this point the court refused so to charge otherwise than had already been charged, and defendant’s counsel excepted.
    Defendant’s counsel also requested the court to charge, that if the jury believed that Mrs. Stroesser owed Smith $82.75 at the time he obtained the money, he should be acquitted.
    The court refused so to charge, and defendant’s counsel excepted.
    Defendant’s counsel also requested the court to charge, that if the jury believed the testimony of Philip Deffaa, they should acquit the prisoner.

      The court refused so to charge, and defendant’s counsel excepted.
    Defendant’s counsel also requested the court to charge, that if the jury believed the testimony of Randolph Cameron, they should acquit the prisoner.
    The court refused so to charge, and defendant’s counsel excepted.
    Defendant’s counsel also requested the court to charge the jury: 1st. That if they believed Smith supposed he was doing a lawful act, he should be acquitted; and, 2d. That if he, by his actions, was endeavoring to collect from Mrs. Stoesser what he supposed to be a just debt, he was entitled to an acquittal.
    Upon the several propositions the court refused to charge other than had already been charged, and to which refusal on each proposition defendant’s counsel excepted.
    The jury rendered a verdict of guilty.
    ' The proceedings were then removed by certiorari into this court, for review.

      Henry L. Clinton, for the prisoner.
    I. The court below erred in charging the jury “ that the defendant, if he made the false pretenses before mentioned, and thereby induced the prosecutrix to give him the money for the flour, could not shield himself from criminal responsibility by showing that his secret intention, not communicated to her, was to apply the money to the payment of a debt due, or claimed to be due, from her to him. ’ That if she (prosecutrix) had parted with the- money to pay the debt, he could not be convicted, no matter how false the representation which induced her to do it; but it was not so, if the money was parted with for another purpose, viz., to pay for the flour, which he represented was then on the way to her store.”
    II. The court below erred in the following portion of its charge to the jury: Upon this point (as stated in Point I), the court, illustrating the same, added as follows: “If the foreman of this jury owed me a debt, and I, being on intimate relations with his family, went to him and falsely told him that his wife had' requested me to come to him and ask him to give me for her a certain sum of money which she wanted to use, and - he gave me the money, I could not shield myself from responsibility by showing that it was a trick of mine, by which I intended only to get money enough in my hands to pay me what was claimed by me to be justly due me.”
    III. The court below erred in refusing to charge, as requested by defendant’s counsel, “ that if the jury believed that Mrs. Stoesser owed Smith $82.70 at the time he obtained the money, he should be acquitted.” .
    IV. The court below erred in refusing to charge as requested by defendant’s counsel, “ that if he (defendant), by his actions, was endeavoring to collect from Mrs. Stoesser what he supposed to be a just debt, he was entitled to an acquittal.”
    Points I, II, III, TV", may be discussed together, as the errors of the court below, specified in these points, were based upon a misapprehension of a single principle of law, to wit: That if defendant, in the representations to the prosecutrix, alleged to have been made by him to her, intended merely to collect a debt due him, or which he believed to be due him, instead of designing to cheat and defraud her, he was not guilty of the offense of obtaining money by false pretenses, even if (which was hot the case) his representations as to facts were designedly false.
    . The language of the statute is, “ Every person who, with intent to cheat or defraud another (not with intent to collect his own debt), shall designedly ” * * * “by any false pretense ” * * * “ obtain from any person, any money,” &c. It is the intent to cheat and' defraud which forms the chief ingredient of the offense. Without this intent there can be no offense. It is not enough if the prosecutor should be incidentally defrauded (which was not the case with the prosecutrix in the case at bar). Eoscoe, in his Criminal Evidence, page 478, well observes: “ The primary intent must be to cheat and defraud. Thus, where the prisoner was indicted for having procured from the overseer of a parish, from which he received parochial relief, a pair of shoes by falsely pretending that he could not go to work because he had no shoes, when he had really a sufficient pair of shoes; and it appeared in evidence, that on the overseer bidding him go to work, he said he could not because he had no shoes, upon which the overseer supplied him with a pair of shoes, whereas the prisoner had a pair before; the prisoner being convicted, the case was considered by the judges, who held that it was not within the act (30 Geo. Ill] ch. 24), the statement made by the prisoner being rather a false excuse for not working, than a false pretense to obtain goods.” (WalceUng’s Case, Russ. & Ry., 504.)
    A. owed B. a debt, of which B. could not obtain payment. C., a servant of B., went to A.’s wife and got ten sacks of malt from her, saying that B. had bought them of A., which he knew to be false, and took the malt to his master in order to enable him to pay himself; it was held by Coleridge, J., that if C. did not intend to defraud A., but only to put it in his master’s power to compel A, to pay him a just debt, he could not be convicted of obtaining the malt by false pretenses. (Williams’ Case, 7 Car. & Payne R., 354.)
    The above case cited by Roscoe (p. 475), with approbation, and approved by the Supreme Court at general term, in People v. Griffin (2 Barb. R., 431), is in harmony with all the authorities on this subject.
    If the intent be to collect a debt due or supposed to be due, it is absurd to say that the intent is to cheat and defraud. This principle underlies all the authorities.
    In the case of The People v. Griffin (2 Barb. R., 427), the defendant was convicted upon an indictment charging him with having written letters to one Heath, threatening to burn and destroy his property, unless he would send defendant the sum of sixteen dollars claimed by defendant to be due from Heath. The court below, in that case (as did the court below in this case), thought that the fact of whether the prosecutor was indebted to the defendant was entirely immaterial. The court charged that it was entirely immaterial whether Heath owed him the money claimed or not The Supreme Court granted a new trial, holding that the charge of the court, as given, was erroneous. The court, per Welles, J. (pp. 429, 430), observe: “ In order to constitute the offense created by this statute, the letters must be sent, &c,, with a view or intent to extort or gain money or property, &c., belonging to another. The intent must be to extort or gain. Can it be truly said that a person extorts money which is justly his due ? ” [Can it be truly said that a defendant cheats or defrauds another, by obtaining from that other, even though he make false representations, that which is justly his (defendant’s) due ? The defendant, .Smith, merely sought to obtain from the prosecutrix that which she owed him. There could be no such thing as ■ defrauding her into the payment of a debt in this way. The defendant’s object was not to cheat or defraud, but to get that which was honestly his due.] Justice Welles (p. 430), further observes: “ In view of the well established rule, that penal statutes are to receive a strict construction, I must interpret this as intending to embrace only cases where the intent is to obtain that which, in justice and equity, the party is not entitled to receive. The end, as well as.the means employed to obtain it, must be wrongful and unlawful.” This language is entirely applicable to the case at bar. The money to pay his debt, Smith was entitled, “in justice and equity,” to receive. The end, to wit, the collection of his debt, was certainly not wrongful or unlawful. Justice Welles continues to illustrate this doctrine, well and forcibly, as follows: “If A. meets B. in the highway, and by threatening his life, induces B., through fear, to surrender his watch or horse to A., this is robbery. If, in the case supposed, B. defends himself or escapes and retains his property, A. is guilty of an attempt to rob. If, however, in either case, A. is able to satisfy the jury that he believed the property to be his, and that he was obtaining, or attempting to obtain what he honestly supposed belonged to him, although, in fact, his claim was not legal, and the property really belonged to B., he should be acquitted. So, in the case of larceny, if the defendant can show he took the goods alleged to be stolen, under a.
      bona fide claim of right, the case becomes a mere trespass. In all these cases, the fraudulent intent is the1 essence of the offense.”
    The following cases are illustrations- of the principle that the end had in view,'as well as the'means of- accomplishing it, must be unlawful in order to .constitute this offense.
    In People v. Thomas (3 Hill R., 169), the defendant falsely represented to one Jones, against whom he held a promissory note, that it had been lost or burned, and thereby induced Jones to pay it. Afterward, the defendant negotiated the note to another person for value, without apprising him that it had been paid. The court held the conviction wrong, on the ground that Jones had not been defrauded. The defendant, Thomas, by false representations and by artifice, had obtained payment of his debt. In the case at bar, Smith, even assuming that he falsely represented that the flour and meal were on the cart, merely obtained payment, or rather part payment of a debt which was due, or which he believed due, from the prosecutrix.
    In the case of The People v. Williams (4 Hill P., 9), the indictment charged that the defendant falsely pretended to Van Gilder that one Gray was about to sue him on a bond which he, the said Gray, then held and owned against Van Gilder, and that the said Gray was about to foreclose a certain mortgage which he then held and owned, and by such false pretenses obtained the signature of Van Gilder to a deed of lands. ■ Although the facts were proved as stated in the indictment, the court held that the prisoner had committed no offense, and ordered a new trial.
    The principle underlying these, as well as all the authorities on the subject, is, that if the intent be to collect a debt exist- * ing, or supposed to exist, there being in such case an absence of intent to cheat or defraud, or if the false representation1 or pretense be such that no legal injury can result, there is no criminal offense.
    V. The court below erred in refusing to charge the jury as' requested by defendant’s counsel, that upon the evidence in the case the defendant was entitled to an acquittal.
    The chief representations averred in the indictment to have been false, to wit, that defendant represented that he was clerk and agent of Riegelman & Deffaa, and had authority to collect the money, were proved on the trial to have been true.

    In the case at bar the only representation claimed to have been made by defendant that was not proven to have been true, that the flour was on the cart, leaving the prosecutrix to infer that it was on its way to her, was entirely immaterial, for Smith could just as well have stopped the cartman of Riegelman & Deffaa on the route to the prosecutrix, as to countermand the order. The “material thing” was that the flour had- been ordered; and this representation was true. (Ranney v. The People, 22 N. Y. R., 413.)
    ■ Upon the facts and circumstances proved in the case, assuming everything testified against the prisoner to have been true, the testimony was not capable of any legal construction which could impute the offense of false pretenses to the prisoner. Upon the undisputed facts, the evidence of the prosecution — the whole evidence — the defendant was clearly entitled as matter of law to an acquittal, and the court below should have so charged the jury.
    VI. The court below erred in refusing to allow the witness Deffaa to state what he (the witness) said to defendant at the time defendant ordered the flour to be stopped. To which defendant excepted. Also in refusing to allow the defendant to prove what transpired between him and the witness Deffaa before he stopped the flour. To which defendant excepted.
    If defendant had committed any offense, it would have been complete at the time he obtained the money. (See People v. Genung, 11 Wend. R., 18.) The court held that the offense (obtaining a signature by false pretenses) was complete when the signature was obtained. Jewett, J., in People v. Crissie (4 Denio R., 427), says that the Supreme Court has often held “ that the offense is complete when a party has been induced, by a pretense within the statute, to affix his signature to an instrument,’’ &c. If Smith did not entertain an intent to cheat and defraud when he obtained the money, no offense could be predicated upon an intent formed afterwards.

    The proposed evidence was also competent as forming a part of the res gesta. The prosecution had proved the fact that Smith did not send the flour, that he countermanded the order, clearly what he had said to Deffaa, and what Deffaa said to him, constituting the transaction, was admissible as forming the res gesta.

    The very definition of res gesta applies to the proposed evidence. In 1 Phillips' Ev., 194, the author says: “ Words and writings appear, perhaps, more properly to be admissible as part of the res gesta, when they accompany some act, the nature and object, or motive of which are the subject of inquiry."

    VIL The court below erred in refusing to allow defendant to show that “ Frederick Stoesser (the husband of prosecutrix) was insolvent, and that the ownership of the store had been frequently transferred by him to his wife, and again by her transferred to him by conveyances fraudulent as to creditors.”
    The prosecutrix having testified, on her direct examination, that she carried on business at 82 Delancey street, six years, and having also testified, under defendant’s objection, that at the time Smith sold to her flour, her husband carried on the business, the testimony proposed was competent, 1st. For the purpose of contradicting, on cross-examination, what she had testified to on the direct on this subject; 2d. As tending to show that her indebtedness to defendant was fraudulently incurred'; 3d. As bearing on the question of the absence of any intent, in law or in point of fact, on the part of defendant to defraud the prosecutrix.
    ■ V111. The indictment in this case is fatally defective, for the reason that there is no sufficient description of property alleged to have been obtained by false pretenses. The judgment should, therefore, be arrested.
    In an indictment for false pretenses, the description of the property obtained must be as particular and specific as in cases of larceny. (Whar. Cr. L., 4th ed., §2155; 3 Chitty Cr. L., 947; Conger's Case, A City Hall Recorder, 65.)
    An indictment describing the things stolen as “ three dollars in divers pieces of silver current in this State, and of the lawful value of three' dollars, is bad, on error.” (Lord v. State, 20 N. H. R, 404.)
    The - court, per Gilchrist, J., in this case (p. 405), say: “ The indictment should contain a description of the pieces of silver stolen. In Rex v. Frey (cited in Russell on Crimes, 109), it was held that “ ten pounds in moneys numbered was bad upon a motion in arrest of judgment.”
    In this State, in the county of Carroll, it has lately been held that “ sundry pieces of silver coin, current bylaw, within this State, amounting together to the sum of twelve dollars of the goods, chattels and moneys of,” &c., was an insufficient description. of property alleged to' have been stolen. The authorities show that a defect of this kind is not cured by a verdict, and by reason of it, the judgment must be reversed; and it is unnecessary to inquire into the other ground of error.”
    Where a person was indicted for stealing three eggs of the value of two pence, Tindall, C. J.,. held the indictment to be bad, for not stating what sort of eggs they were; for all that appeared in the indictment they might be adder’s eggs, or other eggs which could not be the subject of larceny.
    Defective descriptions of the offense charged (the description of property is a material part of the description of the offense) is not one of the points in which an indictment is cured by verdict, but the same is equally fatal upon a motion in arrest of judgment, as upon demurrer or a motion to quash. (State v. Gore, 34 N. H. R., 510.)
    From these authorities it is clear that the indictment is fatally defective.

      A. Oakey Hall (District Attorney), for the People.
    I. The question, “ who was carrying on the business,” was properly admitted against the prisoner, because — as his whole cross-examination shows—he had opened the inquiry. It was probably an irrelevant matter, but prisoner could not object to its being followed up* on his beginnings. But the People are unable to discover how, in any event, the answer prejudiced him.
    II. The offers, to show that the husband of the prosecutrix was insolvent, and that he and she had defrauded creditors, were properly refused.
    Because the evidence included by the offers was irrelevant. (Elementary Law of Evidence, passim.)

    ITT. The conversation between prisoner and Deffaa were properly excluded. ■
    They were liable to the reasons given in People v. Wiley (3 Hill R., 211), for excluding naked declarations in a prisoner’s favor; and they were, as regards the People or the prosecutrix, res inter alios.

    TV". The court properly excluded an offer to impeach complainant., The facts sought after were collateral. Moreover, the evidence offered was not of a competent or appropriate character.
    V. The court correctly charged on the subject of false pretenses in cheating a man into his duty — as the. prisoner’s phrasé was.
    The facts at bar did not warrant the request to charge, even if that request was correct in law. There is nothing in the case to show that Mrs. Stoesser owed prisoner-anything, were the faot admissible. So far from that, it appears by affirmative inference that the prisoner had made an assignment. Moreover, the evidence seems to show that Smith formed the intention of pocketing the money and applying it to.his debt, after the false pretense had been used and his design accomplished.
    If the doctrine contended for by the prisoner was tenable, then disputed claims could be collected by telling ingenious lies in the manner confessedly practiced by the prisoner.
    The case of People v. Thomas (3 Hill R., 170), so relied upbn by prisoner, was decided upon the insufficiency of the indictment. It is evident, from reading the reported case; that" if the maker of the note had been compelled to pay the note a.second time, hé (the maker) would have been defrauded.
    VI. The allegation of obtaining “ money,” which is in the indictment, is sufficient.
    An objection to the sufficiency of such pleading, in the case of People v. Niles, was taken by the late David Graham, but the objection was overruled in both Supreme Court and Court of Appeals, and the point is res adjudicata. (See Indictment and Points in the Niles case; and MSS. reasons for no opinion having been published.)

   Clerks, J.

For the purpose of determining the question involved in this case, I will assume that Mrs. Stoesser was indebted to Smith in the amount which he obtained from her on the 28th of October, 1862. The question, then, is, if by means of false representations or pretenses, by which a creditor makes his debtor believe that the debtor shall receive a new and valuable consideration, and induces the debtor to part with money therefor—the creditor, at the time he takes the money, intending not to give the new consideration, and, accordingly, never giving the debtor the new consideration, but' applying the money, as he intended to apply it at the time he received it. to the payment of the old debt—is he guilty of the legal offense of obtaining property by false pretenses ?

The counsel for the accused refers to two cases which would seem to sustain the negative of this proposition: the one, Williams' Case (7 Carr. & Payne, 354); the other, The People v. Griffin (2 Barb. R., 431). The first of these cases was tried at the Brecon Assizes, before Mr. Justice Coleridge and a jury. The circumstances were these: A. owed B. a debt, of which B. could not get payment. C., a servant of B., went to A.’s wife and obtained two sacks of malt of her, saying that B. had bought them of A. C. knew this to be false, but took the malt to B., his master, to enable him to pay himself the debt. Mr. Justice Coleridge told the jury, if they were satisfied that C. did not intend to defraud A., but only to put it in his master’s power to compel him to pay a just debt, it would be-their duty to find him not guilty. It is not sufficient, he added, that the prisoner knowingly stated that which was false, and thereby obtained the malt; they must be satisfied that the prisoner, at the time, intended to defraud A. The jury rendered a verdict of not guilty. In the other case to which the counsel of the accused has referred, the defendant was convicted upon an indictment charging him with having written letters to one Heath, threatening to burn and destroy his property unless he would send the defendant the sum of sixteen dollars, claimed by defendant to be due to him from Heath. The court below thought that the fact of the indebtedness of Heath was entirely immaterial, and so charged the jury. The Supreme Court, at the Cayuga General Term, January, 1848, granted a new trial, holding that the charge was erroneous; Mr. Justice Welles, in delivering the opinion of a majority of the court, observing: “In order to constitute the offense created by statute, the letters must be sent with a view to extort or gain money or property belonging to another. The intent must be to extort or gain. Can it be truly said that a person extorts money which is justly due?”

Considering the sources frpm which these decisions have come, they are undoubtedly entitled to respectful consideration. But they appear to me so entirely at variance with the well-known policy of the law, that I cannot regard them as of controlling authority in this case. That policy is, not to givó any man the right of self-redress, except in the well-known instances of self-defense, recaption or reprisals, entry on lands and tenements, when another person has, without any right, taken possession thereof, and abatement of nuisances. In the two instances of self-redress which relate to the repossession of property, the law limits the right only to cases where it can be exercised without force or terror or any breach of the peace. Otherwise, this right would be inconsistent with the peace and good order of society, which it is one of the principal purposes of the law to encourage and support. If every man were allowed to redress himself by force and violence, society would fall back into that condition which characterized it before it emerged from the barbarism of the dark and middle ages, when every man and every family undertook to avenge themselves, and the land “ was filled with violence.” Instead of the peaceful administration of justice by impartial tribunals, feuds and factions* transmitted from generation to generation, would obstruct all industry, and render any progress in wealth, refinement or the arts of life impossible. In the same way, and for reasons equally important, the law discourages the employment of fraud or falsehood in the endeavor to obtain redress. Although there are some duties, such as truth, which are termed duties of imperfect obligation, which the law does not undertake to enforce, yet it will never encourage the violation of any of these duties by sanctioning their violation, even in the endeavor to accomplish a lawful end. This would be legalizing the profligate doctrine that the end sanctifies the means—a doctrine not only abhorrent to conscience and the Divine law, but at variance with the principles of municipal law, of which the object is not only to preserve society from open violence, but to discountenance everything that is-calculated to encourage artifice and dishonesty in the intercourse of men with each other. If it is wise to forbid men from using force to collect a debt, it is equally wise to forbid them from using fraud to collect it. If strife is not the immediate consequence of the latter, it will, if generally sanctioned, lead to it It will, at all events, inevitably breed imposture and falsehood, which are quite as pernicious to the best and highest interests of society as violence. Besides, is it to be taken for granted that debtors have no rights ? Is it enough for a man to say that another is his debtor ? The latter may, as, indeed, in the case before us, have a defense to the claim, the sufficiency of which can be properly determined only by the tribunals appointed by the law to ascertain the truth. It would be unjust, by sanctioning a trick, to deprive an alleged debtor of the attitude in which he stands, and allow his alleged creditor to recover his demand without requiring him to prove it where it is disputed, and giving the former an opportunity of substantiating his defense.

This is the result which such a practice would undoubtedly produce; and though.injured creditors may, by such means, occasionally obtain their rights, many debtors would be deprived of their rights. So that where it is said, in the cases above quoted, that “ the defendant’s object was not to cheat or defraud, but to1 get that which was honestly his due,” this is not the question, but the proper consideration is, is it safe to allow every man to be a judge in his own cause, and, in officiating in'that capacity, to allow him to resort to false pretenses to accomplish his purpose? If a person having, or pretending to have, a claim against another, is allowed to" do what in any other case would render him liable to punishment for obtaining goods under false pretenses, why should he not also be allowed to do what, if he had not such a claim, would render him liable to punishment for the crime of larceny ? Would the law, for instance, recognize his. right to take money furtively out of the desk of his alleged debtor, and apply it to the payment of his debt ? He has the opportunity, without force, of doing this, and in the language employed by the court, in The People v. Griffin, “ his object is not to cheat or defraud, but to get that which is honestly his due.” The intent would be precisely the same as in the case before us, and the only difference would be, that in the one case he obtained money by means which, the law, in ordinary cases, calls false pretenses, while in the case I have been supposing, he would obtain it by means which the law, in ordinary cases, calls larceny. But I think he would be convicted of larceny in this supposed case.

The case of The People v. Thomas (3 Hill R., 169), though going very far, does not sustain the principle asserted by the counsel for the accused. In that case there was a misrepresentation as to the loss or destruction of the note,. The note was due, and the maker was willing and ready to pay it. On paying his money he knew that it was to be appropriated to the payment of the note. He was not induced by the misrepresentation to give it for any other purpose, on the promise that he was to get another consideration for it. It did not appear from the indictment that Jones sustained any damage by the false representation. The case turned upon the sufficiency of the indictment. Whether the maker of the note would or would not be injured by any subsequent disposition of the note, was purely speculative.

I think the recorder fairly and clearly presented the true question to the jury, and properly refused to charge as the prisoner’s counsel requested.

The objections taken to the indictment and the rulings on the evidence are equally untenable.

The conviction should be affirmed, and the Sessions directed to proceed to judgment.

Justice Barnard concurred.

Sutherland, P. J. (dissenting).

The question in this case is not one of morals, but of crime. The prisoner was indicted in the Mew York General Sessions, for obtaining from one Eachael Stoesser the sum of $82.70 in money by false pretenses. The crime is statutory. The words of the statute are: “ Every person who, with intent to cheat or defraud another shall designedly,” &c."

Assuming that the pretenses or representations set forth in the indictment, were shown to have been designedly made, and to have been false,' the question presented by the exceptions to the recorder’s charge is, could the prisoner be legally and properly convicted, if the false representations were made and the money thereby obtained, with the intent to apply or credit the same on a just debt, then due and owing from Eachael Stoesser to the prisoner ? In other words, the question presented by the recorder’s charge, and the exceptions to it, is, could the prisoner be lawfully convicted if he used the false and fraudulent means charged in the indictment, for the purpose of obtaining the payment of a just debt, due and owing to him from Mrs. Stoesser ? If, when the money was obtained the prisoner intended to apply it on a just debt, due to him from her, can it be said that he intended to cheat or defraud her out of the money ? I think not. To complete the-statutory crime, the means, the pretenses or representations must not only be false and made designedly, but they must also be made with á particular intent, to wit, to cheat or defraud another.

In equity a debtor’s money belongs to his creditors. It is a maxim of equity that a debtor must be just even before he is generous.

If Mrs. Stoesser’s money went to pay a just debt of hers, it went where it ought td have gone. If the prisoner obtained the money by lying designedly by means of the false representations charged in the indictment, he was guilty of a moral delinquency, of fraud or deceit, if you choose to say so, shocking to the moral sense; but if he resorted to this foti.1 means merely for the purpose of procuring payment of an honest debt, I do not see how it can be said that he intended to defraud Mrs. Stoesser out of her money. If such was his intention, all you can say is, that by lying, without any personal violence or breach of the peace, he obtained what belonged to him. If such was his intention, he was not guilty of the crime defined by statute, although he may have perpetrated a gross fraud. If one citizen can, without going to law, procure from another citizen, what justly belongs to the first citizen, without any breach of the peace or injury to the public, that is, by any means not criminal, I do not see why he cannot do it without being guilty of any crime.

These are my views of the question irrespective of cases, but the case in 7 Carr. & Payne, referred to by Mr. Justice Clerke in his opinion in this case, appears to be in point, and to tend to the same conclusion; and I do not see why it should be disregarded.

If Mrs. Stoesser was indebted to the prisoner at the time he obtained the money, in' an amount larger than the sum obtained, it does not follow that. his intention, at the time he obtained the mphey, was to procure the payment, or part payment of that debt. His applying the money on the debt may have proceeded from an afterthought.

With the other questions in the case, I think the recorder should have submitted to the jury the questions as to the fact or existence of the indebtedness of Mrs. Stoesser to the prisoner, and as to the intention, and should have charged the jury, that if they found that Mrs. Stoesser was, at the time, &c., indebted to the prisoner in an amount equal to or greater than the sum of money obtained, and also found that the prisoner, when he made the false representations and obtained the money, intended to apply it on such debt, and did subsequently so apply it or credit it, that they must' acquit, however false or designed the representations by the prisoner may have been.

My conclusion is, that the conviction of the prisoner should be reversed, and that a new trial should be ordered.

Judgment affirmed.