
    The United States against Stiles Phelps.
    THIS was an indictment for assaulting Edward. Cheeseborough, an inspector of the customs for the district of JVeiv-London, duly appointed and sworn, knowing . , . . ... . ° him to be such inspector, while executing the duties of his said office, under the direction of Jonathan Palmer, surveyor of the customs for said JVeiv-London district, . . and for forcibly resisting him the said Edward Cheese-borough in the execution of his duty in said office.
    The District-Attorney, in support of the indictment, offered in evidence a warrant under the hand of Jonathan 
      
      Palmer, surveyor of the port of Stonningion, for the appointment of Cheeseborough as inspector of the customs.
    
      In a prosecutor of the cus' toms in the execution of ⅞* °* warrant lrom the surveyor appointing office,^i/not sufficient evidence of his to support the indictment, . the collector being the only person authorized by law to make such appointment.
    
      Semb. The surveyor may lawfully appoint assistants, and it will be an indictable offence to resist them in the execution of the duties of their office; but the indictment must describe such officers truly, and not as inspectors.
    
      April, 1810.
    
      Daggett, (with whom were Goddard and Billings,) for the prisoner, objected to this evidence, on the ground that the law requires the inspector to be - appointed by the collector, and recognises no other mode of appointment.
   The Court

said the indictment must be strictly proved.

The Attorney then observed, that the surveyor had a right by law to appoint assistants in the execution of his office, and that it was penal to resist such an officer thus appointed; and contended that Cheeseborough was an officer of this description, and that the warrant of the surveyor was admissible to prove his appointment in this point of view.

The Court acquiesced in the position, that the surveyor might nominate assistants, and that it would be penal to resist them in the execution of their office; but if a man is prosecuted for such an offence, the indictment must describe the assistants in their real character and Capacity. Here Phelfis is prosecuted for resisting an in-sfiector of customs, an officer known and described in the law. It does not appear that Cheeseborough was appointed to that office; and although he might have held another office, and how penal soever it might be to resist him, it is clear that this indictment cannot be supported. If Phelfis be guilty of any crime, it is that of resisting an assistant of a surveyor; but he is charged with a different crime.

No other evidence being offered,

The Court directed the jury to find the prisoner not guilty; which, they did without retiring from their seats.  