to give validity to instruments in writing designed to be used in such foreign countries respectively." See R. v. Nott, 4 Q. B. 768.5

Under this head will be considered the evidence requisite in prosecutions against officers,-1, for malfeasance; 2, for nonfeasance; 3, for extortion, and, 4, for refusing to execute an office.

Proof of malfeasance-illegal acts in general.] It is a general rule that a public officer is indictable for misbehaviour in his office. Anon. 6 Mod. 96. And where the act done is clearly illegal, it is not necessary, in order to support an indictment, to show that it was done with corrupt motives. Thus, where a license having been refused by certain magistrates, another set of magistrates, having concurrent jurisdiction, appointed a subsequent day for a meeting, and granted the license which had been refused before, it was held that this was an illegal act, and punishable by indictment, without the addition of corrupt motives. Sainsbury's case, 4 T. R. 451. Still more is such an offence punishable when it proceeds from malicious or corrupt motives. Williams's case, 3 Burr. 1317; Holland's case, 1 T. R. 692.

A gaoler is punishable for barbarously misusing the prisoners, Hawk, P. C. b. 1, c. 66, s. 2. So overseers of the poor for misusing paupers, as by lodging them in unwholesome apartments. Wetheril's case, Cald. 432; or by exacting labour from such as are unfit to work. Winship's case, Cald. 76. But it is no part of their duty to cause paupers to be vaccinated. 3 Ad. & E. 552.a

Public officers are also indictable for frauds committed by them in the course of their employment. As where an overseer receives from the father of a bastard a sum of money as a compensation with the parish, and neglects to give credit for this sum in account, he is punishable, though the contract is illegal. Martin's case, 2 Campb. 268. See also Bembridge's case, cited 6 East, 136.

Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his fault indictable. Per Cur. Wyat's case, 1 Salk. 380.

Upon an indictment against a public officer for neglect of duty, it is sufficient to state that he was such officer without stating his appointment; neither is it necessary to aver that the defendant had notice of all the facts alleged in the [*805] indictment, if it was his official *duty to have known them. So where a defendant is charged with disobedience of certain orders communicated to him, it need not be alleged that such orders still continue in force, as they will be assumed to continue in force until they are revoked. And an indictment for Eng. C. L. Reps. xlv. 768.

Id. xxx. 151.

neglect of duty under a particular statute need not state that the neglect was corrupt, if the statute makes a wilful neglect a misdemeanor. Holland's case, 5 T. R. 607.

Every malfeasance or culpable nonfeasance of an officer of justice, in relation to his office is a misdemeanor, and punishable with fine or imprisonment, or both. As to bailiffs of inferior courts, see the recent statute of their regulation, the 7 Vict. c. 19.

Proof of nonfeasance.] Upon a prosecution for not performing the duties of an office, the prosecutor must prove, 1, that the defendant holds the office; 2, that it was his duty, and within his power to perform the particular act; and 3, that he neglected so to do.

Where an officer is bound by virtue of his office, to perform an act, the neglect to perform that act is an indictable offence. Thus a coroner, 2 Chitt. C. L. 255; 1 Russ. by Grea. 138; a constable, Wyat's case, 1 Salk. 380; a sheriff, Antrobus's case, 6 C. & P. 784 ; and an overseer of the poor, Tawney's case, 1 Bott, 333, are indictable for not performing their several duties. The majority of the judges were of opinion, that an overseeer cannot be indicted for not relieving a pauper, unless there has been an order of justices for such relief, or unless in a case of immediate and urgent necessity. Meredith's case Russ. & Ry. 46. But where the indictment stated that the defendant (an overseer) had under his care a poor woman belonging to his township, but neglected to provide for her necessary meat, &c., whereby she was reduced to a state of extreme weakness, and afterwards, through want, &c., died, the defendant was convicted, and sentenced to a year's imprisonment. Booth's case, Ibid. 47 (n.) And in a case where an overseer was indicted for neglecting, when required, to supply medical assistance to a pauper labouring under dangerous illness, it was held that the offence was sufficiently charged and proved, though the pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief. Warran's case, coram Holroyd, Ibid. p. 48 (n).

By the 11 Geo. 1, c. 4, the chief officers of corporations, absenting themselves on the charter day for the election of officers, shall be imprisoned for six months. Such offence, however, is not indictable within the statute unless their presence is necessary to constitute a legal corporate assembly. Corry's case, 5 East, 372.

Proof of extortion.] One of the most serious offences committed by persons in office is that of extortion, which is defined to be the taking of money by an officer by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due.(1) Hawk. P. C. b. 1, c. 68, s. 1. So the refusal by a public officer to perform the duties of his office, until his fees have been paid, is extortion. 3 Inst. 149; Hescott's case, 1 Salk. 330; Hutt. 53. So it is extortion for a miller or a ferryman to take more toll than is due by custom. Burdett's case, infra. So when the farmer of a market *erected such a number of stalls [ *806 ] that the market people had not space to sell their wares, it was held that the taking money from them for the use of the stalls was extortion. Burdett's case, 1 Ld. Raym. 149.

The prosecutor must be prepared to prove, first, that the defendant fills the office in question. For this purpose it will be sufficient to show, that he has acted as

(1) It is an indictable offence in public officers to exact and receive any thing more for the performance of their duty than the fees allowed by law. Gillmore v. Lewis, 12 Ohio, 281.. 1 Eng. C. C. 46. d Id. 47. • Id. 48.

b Eng. C. L. Reps. xxv. 651.

such officer; and secondly, the fact of the extortion. This must be done by showing what are the usual fees of the office, and proving the extortion of more. Several persons may be indicted jointly, if all are concerned; for in this offence there are no accessaries, but all are principals. Atkinson's case, 2 Ld. Raym. 1248; 1 Salk. 382; Loggen's case, 1 Str. 75.

The indictment must state the sum which the defendant received, but the exact sum need not be proved, as where he is indicted for extorting twenty shillings, it is sufficient to prove that he extorted one shilling. Burdett's case, 1 Ld. Raym. 149; Gillham's case, 6 T. R. 267; Huggins's case, 4 C. & P. 247.1(2)

The offence of extortion is punishable as a misdemeanor at common law, by fine and imprisonment, and by removal from office. Hawk. P. C. b. 1, c. 68, s. 5. Penalties are likewise added by the statute of Westm. 1, c. 26.

It is also an indictable offence to persuade another to extort money from a person, whereby money actually was extorted from him. Tracy's case, 3 Salk. 192.

Extortion by public officers in the East Indies.] The 33 Geo. 3, c. 52, s. 62, enacts, that the demanding or receiving any sum of money, or other valuable 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 offender, to be paid to the prosecutor or informer.

Extortions by registrars of joint stock companies.] By the 7 & 8 Vict. c. 110 (an act for the registration, incorporation, and regulation of joint stock companies) s. 22, "if either the said registrar of joint stock companies, or any persons employed under him, either demand or receive any gratuity or reward in respect of any service performed by him, other than the fees aforesaid, then for every such offence, every such registrar or person shall be guilty of a misdemeanor.”

Proof on prosecutions for refusing to execute an office.] A refusal to execute an office to which a party is duly chosen, is an indictable offence, as that of constable; Lone's case, 2 Str. 920; Genge's case, Cowp. 13; or overseer. Jones's case, 2 Str. 1145; 7 Mod. 410; 1 Russ. by Grea. 145.

The prosecutor must prove the election or appointment of the defendant, his [ *807] liability to serve, notice to him of his appointment, *and his refusal. It must appear that the persons appointing him had power so to do. Thus on an indictment for not serving the office of constable on the appointment of a corporation, it must be stated and proved that the corporation had power by prescription to make such an appointment, for they possess no such power of common right.

(2) The fees must be wilfully and corruptly demanded. It is not extortion in case of mistake or for extra trouble in conformity with usage. Commonwealth v. Shed, 2 Mass. 227. There must be the receipt of money or some other thing of value. Taking a promissory note is not enough. Commonwealth v. Corry, 2 Mass. 524. See People v. Whaley, 6 Cowen, 661. It is not necessary in an indictment against a constable for extortion, in corruptly and by color of his office collecting on an execution more than was due, to show what sum he had extorted for his fees. The State v. Stotts, 5 Black. 460.

Eng. Com. Law Reps. xix. 368.

Bernard's case, 2 Salk. 52; 1 Ld. Raym. 94. The notice of his appointment must then be proved, Harper's case, 5 Mod. 96, and his refusal, or neglect to perform the duties of the office, from which a refusal may be presumed.

For the defence it may be shown that the defendant is not an inhabitant resiant of the place for which he is chosen. Adlard's case, 4 B. & C. 722;s Donne v. Martyr, 8 B. & C. 62; and see the other grounds of exception enumerated in Archb. Cr. Pr. 669, 10th ed.

It is not any defence that the defendant resides in the jurisdiction of a leet within the hundred or place for which he is elected. Genge's case, Cowp. 13; or that no constable had ever before been appointed for the place. 2 Keb. 557.

The punishment is fine or imprisonment, or both. See Bower's case, 1 B. & C. 587.i

The proofs required to support an indictment for perjury at common law will be first considered, and the statutes creating the offence of perjury in various cases will be subsequently stated.

Perjury at common law.] Perjury at common law is defined to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely to a matter of some consequence to the point in question, whether he believed it or not. Hawk. P. C. b. 1, c. 69, s. 1. The proceedings, however, are not confined to courts of justice. Vide post, p. 811.(1)

The necessity for showing distinctly that the false oath was taken in a judicial proceeding, is not dispensed with by the 23 Geo. 2, c. 11, s. 1. R. v. Overton, 4 Q. B. 83.

(1) The definition of Hawkins was the words "in a course of justice" which is more accurate than the phrase in the text, "in a court of justice.

« Eng. Com. Law Reps. x. 458.

h Id. xv. 154.

■ Id. xlv. 83.

i Id. viii. 153.

The taking of a false oath required by statute is not perjury, unless so declared by the act, but is a misdemeanor; see post, 813.

To support an indictment for perjury, the prosecutor must prove, 1, the authority to administer an oath; 2, the occasion of administering it; 3, the taking of the oath; 4, the substance of the oath; 5, the materiality of the matter sworn; 6, the introductory averments; 7, the falsity of the matter sworn; and, 8, the corrupt intention of the defendant. 2 Stark. Ev. 621, 2d ed.

Proof of the authority to administer an oath.] Where the oath has been [*809] administered by a master in chancery, surrogate, or commissioner, *having a general authority for that purpose, it is not necessary to prove his appointment; it being sufficient to show that he has acted in that character. See the cases cited, ante, p. 7, and p. 17. But as this evidence is only presumptive, it may be rebutted, and the defendant may show that there was no appointment, or that it was illegal. Thus after proof that the oath had been made before a person who acted as a surrogate, the defendant showed that he had not been appointed according to the canon, and was acquitted. Verelst's case, 3 Camp. 432. Where the party administering the oath derives his authority from a special commission directed to him for that purpose, it is necessary to prove the authority by the production and proof of the commission which creates the special authority. 2 Stark. Ev. 622, 2d ed. Thus upon an indictment for perjury against a bankrupt, in passing his last examination, Lord Ellenborough ruled that it was necessary to give strict proof of the bankruptcy, which went to the authority of the commissioners to administer an oath, for unless the defendant really was a bankrupt the examination was unauthorized. R. v. Punshon, 3 Camp. 96; 3 B. & C. 354.

Where a cause was referred by a judge's order, and it was directed that the witnesses should be sworn before a judge, ❝or before a commissioner duly authorized,” and a witness was sworn before a commissioner for taking affidavits (empowered by stat. 29 Car. 2, c. 5), it was held that he was not indictable for perjury, the commissioner not being "duly authorized" by the statute to administer an oath for a vivâ voce examination. Hank's case, 3 C. & P. 419. So on an indictment for perjury, before a justice, in swearing that J. S. had sworn twelve oaths, where the charge as stated did not import that the oaths were sworn in the county in which the justice acted, Eyre, J., arrested the judgment, because, as the charge did not so import, the justice had no power to administer the oath to the defendant. Wood's case, 2 Russ. by Grea. 540.

Where perjury was charged to have been committed on that which was in effect the affidavit on an interpleader rule; and the indictment set out the circumstances of the previous trial, the verdict, the judgment, the writ of fieri facias, the levy, the notice by the prisoner to the sheriff not to sell, and the prisoner's affidavit that the goods were his property, but omitted to state that any rule was obtained according to the provisions of the interpleader act: Coleridge, J., held that the indictment was bad, as the affidavit did not appear to be made on a judicial proceeding since for anything that appeared it might have been a voluntary oath. R. v. Bishop, Carr. & M. 302.d

:

In the case of a trial taking place where the court has no jurisdiction, as where one of several co-plaintiffs dies, and his death is not suggested on the roll, pursuant to the 8 and 9 Wm. 3, c. 11, s. 6, the suit is abated, and for evidence given at the trial a witness cannot be indicted for perjury. Cohen's case, 1 Stark. N. P. C. 511. So a false oath taken in the court of requests, in a manner concerning b Eng. C. L. Reps. x. 459. Id. xiv. 376.

d Id. xli. 169.

⚫ Id. ii. 489.