may fine con By the 33 Geo. 3. c. 55. two justices at a petty or special ses- Justices at sions of the peace, upon complaint on oath of any neglect of duty petty sessions or disobedience of any warrant or order of any justice of the stables, &c. peace, by any constable, overseer of the poor, or other peace or for neglect of parish officer, such constable, overseer, or other officer, having duty. been duly summoned, may impose, upon conviction, any reasonable fine or fines not exceeding the sum of forty shillings, as a punishment for such neglect of duty or disobedience. tions absent from, or hindering the other officers, may be impri elections of soned. The absence or misconduct of the chief officers of corporations Chief officers at the time of elections, whereby the completion of the election of corpora-. of other chief officers may be prevented, is punishable by the ing themselves provisions of 11 Geo. 1. c. 4. The sixth section of the statute enacts, "that if any mayor, bailiff or bailiffs, or other chief officer or officers of any city, borough, or town corporate, shall volun"tarily absent himself or themselves from, or knowingly and designedly prevent or hinder the election of any other mayor, "bailiff, or other chief officer in the same city, borough, or town "corporate, upon the day, or within the time appointed by charter "or ancient usage for such election;" such offender being convicted shall, for every offence, be imprisoned for six months, and be for ever disabled from exercising any office belonging to the same city, borough, or corporation. This voluntary absence from the election of a chief officer must be such an absence whereby the mischief complained of in the preamble of the statute, namely, the preventing the completion of the election of a chief officer, may possibly be occasioned. It has been decided, therefore, that a chief officer voluntarily absenting himself upon the charter day of election of his successor is not indictable, unless his presence as such chief officer be necessary by the constitution of the corporation to constitute a legal corporate assembly for such purpose. (h) Public officers may also be indicted for frauds committed in Frauds by their official capacities. Thus in a case where two persons were public officers. indicted for enabling others to pass their accounts with the pay office in such a way as to enable them to defraud the government, though it was objected that it was only a private matter of account and not indictable, the Court held otherwise, as it related to the public revenue. (1) And if an overseer of the poor receive from the putative father of a bastard child born within the parish a sum of money as a composition with the parish for the maintenance of the child, he is liable to an indictment for fraudulently omitting to give credit for this sum in his accounts with the parish. (k) It was objected in this case, that the defendant was not bound to bring this sum to account, the contract being illegal; (7) that the whole might have been recovered back, and that the defendant himself would have been personally answerable for it to the putative father; that the money, therefore, was not the money of the parish, and that the parish was neither defrauded nor damnified by its being omitted in the overseer's accounts. But Lord Ellenborough was of opinion, that though the defendant would (h) Rex v. Corry, 5 East. 372. (i) Rex v. Bembridge and Another, cited 6 East. 136. (k) Rex v. Martin, 2 Campb. 268. 396. By officers, &c. of the getiary at Mill neral peniten bank. Extortion by have been liable to the putative father for so much of the money as was not expended upon the maintenance of the child and the lying-in of the mother, yet having taken the money as overseer for the benefit of the parish, he was bound to bring it to account, and that he was guilty of an indictable offence by attempting to put it into his own pocket. By the 56th Geo. 3. c. 63. which was passed to regulate the general penitentiary for convicts at Millbank, provision is made for the punishment of the governor and the other officers and servants of that establishment, in case of any fraudulent or improper charges in their accounts. The twelfth section enacts, (after stating the mode of examination to be adopted,) that in case there shall appear in any such accounts any false entry knowingly or wilfully made, or any fraudulent omission, or any other fraud whatsoever, or any collusion between the officers and servants, or between the officers and servants and any other persons in any matter relative thereto, the committee may dismiss such officers or servants, and, if they see fit, cause indictments to be preferred against the officers, servants, or other persons so offending at the next quarter or other general session of the peace for the county wherein the penitentiary is situated, or for any adjoining county; and in case the persons indicted are found guilty, they are to be punished by fine and imprisonment, or either of them, at the discretion of the court. The later statute 59 Geo. 3. c. 136., which was passed for the better regulation of this penitentiary, contains further provisions for the punishment of officers and servants guilty of misconduct. It may be observed, that where a duty is thrown on a body consisting of several persons, each is individually liable for a breach of duty, as well for acts of commission as for omission; and where a public officer is charged with a breach of duty, which duty arises from certain acts within the limits of his office, it is not necessary to state that he had notice of those acts; for he is presumed from his situation to know them. (m) Extortion in a large sense signifies any oppression under colour public officers. of right: but in a more strict sense signifies the unlawful taking by any officer, by colour of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. (n) By the statute of Westm. 1. (3 Edw. 1.) c. 26. which is only in affirmance of the common law, it is declared and enacted to be extortion for any sheriff or other minister of the king, whose office any way concerns the administration or execution of justice, or the common good of the subject, to take any reward whatsoever, except what he received from the king. This statute extends to escheators, coroners, bailiffs, gaolers, and other inferior officers of the king, whose offices were instituted before the making of the act. (o) Justices of the peace, whose office was instituted after the act, are bound by their oath of office to take nothing for their office of justice of the peace to be done, but of the king, and fees accustomed, and costs limited by statute. And (m) Rex v. Holland, 5 T. R. 607. c. 68. s. 1. (0) 2 Inst. 209. 2 Burn. Just. tit. Extortion, p. 393. generally no public officer may take any other fees or rewards for doing any thing relating to his office than some statute in force gives him, or such as have been anciently and accustomably taken; and if he do otherwise, he is guilty of extortion. (p) And it should be observed, that all prescriptions which have been contrary to the statute and to the common law, in affirmance of which it was made, have been always holden to be void; as where the clerk of the market claimed certain fees as due time out of mind, for the examination of weights and measures; and this was adjudged to be void. (g) But the stated and known fees allowed by the courts of justice to their respective officers, for their labour and trouble, are not restrained by the common law, or by the statute of Westm. 1. c. 26. and therefore such fees may be legally demanded and insisted upon without any danger of extortion. (r) And it seems that an officer who takes a reward, which is voluntarily given to him, and which has been usual in certain cases, for the more diligent or expeditious performance of his duty, cannot be said to be guilty of extortion; for without such a premium it would be impossible in many cases to have the laws executed with vigour and success. (s) But it has been always holden, that a promise to pay an officer money for the doing of a thing which the law will not suffer him to take any thing for, is merely void, however freely and voluntarily it may appear to have been made. (1) The stated fees of courts of justice may be insisted upon. It has been held to be extortion to oblige the executor of a will Cases of exto prove it in the bishop's court, and to take fees thereon, when tortion. the defendants knew that it had been proved before in the prerogative court. (u) And it is extortion in a churchwarden to obtain a silver cup or other valuable thing, by colour of his office. (w) And a coroner is guilty of this offence, who refuses to take the view of a dead body until his fees are paid. (x) So if an undersheriff obtain his fees by refusing to execute process till they are paid, (y) or take a bond for his fee before execution is sued out, (2) it will be extortion. And it will be the same offence in a sheriff's officer to bargain for money to be paid him by A. to accept A. and B. as bail for C., whom he has arrested; (a) or to arrest a man in order to obtain a release from him; (b) and also in a gaoler to obtain money from his prisoner by colour of his office. (c) In the case of a miller, where the custom has ascertained the toll, if the miller takes more than the custom warrants, it is extortion: (d) (p) Dalt. c. 41. 2 Burn's Just. tit. Extortion, p. 341. (7) I Hawk. P. C. c. 68. s. 2. 3 Bac. Abr. 108. tit. Extortion. (r) 1 Hawk. P. C. c. 68. s. 3. 2 Inst. 210. Co. Lit. 369. 3 Bac. Abr. 108. tit. Extortion. (8) 3 Bac. Abr. 108. tit. Extortion. 2 Inst. 210. 3 Inst. 149. Co. Lit. 368. (t) 3 Bac. Abr. 108. til. Extortion. (u) Rex v. Loggen and another, I Str. 73. (w) Roy v. Eyres, 1 Sid. 307. (r) 3 Inst. 149. court said that the plaintiff might (z) Empson v. Bathurst, Hutt. 53, (d) Rex v. Burdett, 1 Lord Raym. 33 G. 3. c. 52. East Indies. Two persons may be in dicted jointly for extortion, and there are no accessories. Trial. Not material to prove the exact sum laid. and the same if a ferry-man take more than is due by custom for the use of his ferry. (e) And it was held that if the farmer of a market erects so many stalls, as not to leave sufficient room for the market people to stand and sell their wares, so that for want of room they are forced to hire the stalls of the farmer, the taking money for the use of the stalls in such case is extortion. (ƒ) In a recent case it was decided, that the question of exemption from toll could not be tried on an indictment against a turnpikekeeper for extortion in taking the toll; the general right to demand toll not having been denied, nor the ground of exemption notified, at the time when the toll was taken. (g) The 33 Geo. 3. c. 52. s. 62. enacts that the demanding or receiving any sum of money, or other val able thing, as a gift or present, or under colour thereof, whether it be for the use of the party receiving the same, or for or pretended to be for the use of the East India Company, or of any other person whatsoever, by any British subject holding or exercising any office or employment under his Majesty, or the company, in the East Indies, shall be deemed to be extortion and a misdemeanor at law, and punished as such. The offender is also to forfeit to the king the present so received, or its full value: but the court may order such present to be restored to the party who gave it, or may order it, or any part of it, or of any fine which they shall set upon the offender, to be paid to the prosecutor or informer. Two persons may be indicted jointly for extortion where no fee was due; and there are no accessories in this offence. In a case where the indictment was against the chancellor and also against the registrar of a bishop, it was objected that the offices of the defendants were distinct, that what might be extortion in one might not be so in the other, and that therefore the indictment ought not to be joint. But by Parker, C. J. this would be an exception if they were indicted for taking more than they ought; but it is only against them for contriving to get money where none is due : and this is an entire charge. For there are no accessories in extortion: but he that is assisting is as guilty as the extortioner, as he that is party to a riot is answerable for the act of others. (h) It is said, that an indictment for extortion may be laid in any county by the 31 Eliz. c. 5. s. 4.: (i) but this position has been questioned. (k) It may be tried and determined by justices of the peace at their sessions by virtue of the term "extortions" in Their commission. (1) The indictment must state a sum which the defendant received: but it is not material to prove the exact sum as laid in the indictment; so that if a man be indicted for taking extorsively twenty shillings, and there be proof but of one shilling, it will be sufficient. (m) And the extòrsive agreement is (e) Rex v. Roberts, 4 Mod. 101. 149. (g) Rex v. Hamlyn, 4 Campb. 379. Rex v. Atkinson and another, Lord 1 Hawk. P. C. c. 68. s. 6. note(3); 2 Burn's Just. 344, Extortion, Stark. Crim. Plead. 585, note (k). (k) 2 Hawk. P. C. c. 26. s. 50. 2 Chit. Crim. Law, 294, in the note. (1) Rex v. Loggen and another, 1 Stra. 73. (m) Rex v. Burdett, 1 Lord Raym. not the offence, but the taking; for a pardon after the agreement, and before the taking, does not pardon the extortion. (n) The offence of extortion is punishable at common law by fine Punishment. and imprisonment; and also by a removal from the office in the execution of which it was committed; (o) and there is a further additional punishment by the statute of Westm. 1. c. 26. by which it is enacted" that no sheriff nor other king's officer shall take any reward to do his office, but shall be paid of that which they "take of the king; and that he who so doth shall yield twice as "much, and shall be punished at the king's pleasure." (p) And an action lies to recover this double value. (q) cute offices. The refusal of persons to execute ministerial offices to which Refusal to exethey are duly appointed, and from the execution of which they have no proper ground of exemption, seems in general to be an indictable offence. Thus it has been held to be indictable for a constable, after he has been duly chosen, to refuse to execute the office, (r) or to refuse to take the oath for that purpose. (s) And the statute 1 Geo. 4. c. 37. which authorizes justices in cases of tumult, riot, &c. to appoint special constables, enacts by s. 2. that any person appointed and neglecting to take the office, and act, shall be liable to the same punishment as persons refusing the office of constable. So a person is indictable for refusing to take upon himself the office of overseer of the poor. (t) For though the statute 43 Eliz. c. 2. says only that certain persons therein described shall be overseers, and gives no express indictment for a refusal of office; yet upon the principles of common law, which are that every man shall be indicted for disobeying a statute, the refusal to serve when duly appointed is indictable. (u) But there should be previous notice of the appointment; and the indictment should shew that the defendant was bound to undertake the office by setting forth how he was elected. (w) And if an indictment for refusing to serve the office of constable on being thereto chosen by a corporation do not set forth the prescription of the corporation so to choose, it is bad; for a corporation has no power of common right to choose a constable. (x) 149; and see Rex v. Gillham, 6 T. R. 267. (n) By Holt, C. J. in Rex v. Burdett, 1 Lord Raym. 149. (0) 1 Hawk. P. C. c. 68. s. 5. 3 Bac. Abr. 109. Extortion. (p) By the king's pleasure" is meant by the king's justices before whom the cause depends, and at their discretion, 2 Inst. 210. (q) 3 Com. Dig. 323. (r) Rex v. Lowe, 2 Stra. 92. Rex v. Chapple, 3 Campb. 91. Rex v. Genge, Cowp. 13. Rex v. Clerke, 1 Keb. 393. (s) Rex v. Harpur, 5 Mod, 96. Fletcher v. Ingram, 5 Mod. 127. (1) Rex v. Jones, 2 Stra. 1145. S. C. |