It has been held to be extortion to oblige the executor of a will to prove it in the bishop's court, and to take fees thereon, when the *defendants knew that *209] it had been proved before in the Prerogative Court.(7) And it is extortion in a churchwarden to obtain a silver cup or other valuable thing, by color of his office.(m) And a coroner is guilty of this offence, who refuses to take the view of a dead body until his fees are paid.(n) So if an under-sheriff obtain his fees by refusing to execute process till they are paid,(0) or take a bond for his fee before execution is sued out,(p) 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 ;(9) or to arrest a man in order to obtain a release from him;(r) and also in a gaoler to obtain money from his prisoner by color of his office.(s) 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;(t) and the same if a ferryman takes more than is due by custom for the use of his ferry.(u) 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 a case is extortion. (v) Where a collector of post-horse duty demanded a sum of money of a person, charging him with having let out posthorses without paying the duty, and threatening him with an Exchequer process, and he thereon gave him a promissory note for five pounds, which was afterwards paid and the proceeds handed over to the farmer of the post-horse duties, it was held to be extortion.(w) The question of exemption from toll could not be tried on an indictment against. a turnpike-keeper 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.(x) And now, by the 4 Geo. 4, c. 95, s. 50, no person, who shall take more toll than he is authorized to take, shall be prosecuted by indictment for extortion or otherwise. 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 color 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 *210] 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. An information filed by the Attorney General charged that the defendant, a British subject, held for a long time an office in the East Indies, under the East India Company, viz., the office of resident at Tanjore, and during all that time resided in the East Indies, and that whilst he held the said office, and within six years before the filing of the information, in the East Indies he did unlawfully receive from a certain person in the East Indies a sum of money, viz., 2000 rupees, of (1) Rex v. Loggen, 1 Str. 73. (n) 3 Inst. 149. (m) Roy v. Eyres, 1 Sid. 307. (o) Hestcott's case, 1 Salk. 330. The Court said that the plaintiff might bring an action against him for not doing his duty, or might pay him his fees, and then indiet him for extortion. (p) Empson v. Bathurst, Hutt. 52, where it is said that an obligation made by extortion is against common law, for it is a robbery; and that the sheriff's fee is not due until execution. (r) Williams v. Lyons, 8 Mod. 189. Stark. 588. (u) Rex v. Roberts, 4 Mod. 101. (q) Stotesbury v. Smith, 2 Burr. 924. the value of £200 of lawful money of Great Britain, as a gift and present, against the statute; whereby he was guilty of extortion and a misdemeanor, and by force of the statute had forfeited the sum of £200, the value of the said rupees; and the Court of Queen's Bench held that it was no ground to arrest the judgment that the count did not state whether the rupees were Bombay, Madras, or Sicca rupees, or state the value of a single rupee; and that Court and the Court of Exchequer Chamber held that the count was good, although it did not aver that the gift was received extorsively or under color of the office; first, because, supposing that the statute were confined to such cases, the information was good after the verdict by the 7 Geo. 4, c. 64, s. 21, as it described the offence in the words of the statute creating it; and secondly, because the 33 Geo. 3. c. 52, extended to any receipt of a gift by any officer; for the object of the Legislature was to prevent any officer from receiving any gift or present of money in the East Indies absolutely, whatever the reason of the gift might be; and, although the count did not allege for whose use or pretended use the gift was received; for even if an officer receive a present under color of its being a present to the Queen, he would be guilty of an offence within the statute.(y) Two persons may be indicted jointly for extortion where no fee was due; and there are no accessories in this offence. Upon an indictment against the [*211 chancellor and 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 (z) And an indictment against three averring that they, colore officiorum suorum, took so much, is good, for they might take so much in gross, and afterwards divide it amongst them, of which the party grieved could have no notice. (a) It is said, that an indictment for extortion may be laid in any county by the 31 Eliz. c. 5, s. 4;(b) but this position has been questioned. (c) It may be tried and (y) Reg. v. Douglas, 13 Q. B. 42 (66 E. C. L. R.). The jury had found a verdict on several counts, charging receipts of sums in rupees as gifts, after which followed a finding as to each count severally that the sum received, as in the count mentioned, was the sum of so many rupees, which sum of rupees, at the time of receiving them, was of the value of so much British money, being at the rate of 1s. 11d. per rupee; and the Court of Queen's Bench adjudged fine and imprisonment separately upon each count upon which the defendant was convicted; and further, that the defendant, in pursuance of the statute, do also forfeit to the Queen the several sums following (naming the values of the sums in rupees, as found on each count respectively), the said forfeitures amounting together to the sum of (the aggregate of the values); and further, that the defendant be imprisoned until he shall have paid the said fines and forfeitures. And the Court of Exchequer Chamber held, 1st, that this judgment was good, although it did not give the defendant the option of forfeiting the gifts actually received, as the gift itself was money; 2dly, that it was right to estimate the value at the time of the receipt, and not of the conviction; 3dly, that imprisonment in default of paying the forfeiture was rightly awarded, as that forfeiture was not arbitrarily imposed by the Court, but fixed by the statute, and superadded, by authority of the statute, to the other punishments of the offence. The Court of Queen's Bench held that the alterations in the Madras Courts made by several statutes did not preclude the issuing of a mandamus under the 13 Geo. 3, c. 63, s. 40, to examine witnesses, to the Madras Court as finally constituted, and that such a mandamus directed to the Chief Justice and other judges, who were two, of the Madras Supreme Court, requiring them to hold a Court and examine witnesses, was well executed by the Chief Justice and one other judge. See also this case as to what parchment writings are such examinations as are required by the Act to be returned to such a mandamus. (2) Rex v. Loggen, 1 Str. 75. Quære, whether this was not an indictment for a conspiracy to defraud, and not for extortion. But as to the rule, that several persons may be jointly indicted for extortion, see Rex v. Atkinson, Lord Raym 1248; 1 Salk. 382. (a) Lake's case, 3 Leon. 268; Com. Dig. tit. Extortion. (6) 1 Hawk. P. C. c. 68, s. 6, note (3); Burn's Just. tit. Extortion; Stark. Crim. Plead. 585, note (k). (c) 2 Hawk. P. C. c. 26, s. 50; 2 Chit. Crim. Law 294, in the note. determined by justices of the peace at their sessions by virtue of the term "extortions" in their commission. (d) A count for extortion ought to charge a single offence only; because every extortion from every particular person is a separate and distinct offence, and each offence requires a separate and distinct punishment, and therefore a count charging the defendant with extorting divers sums exceeding the ancient rate for ferrying men and cattle over a river is bad.(e) 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. (f) An indictment for extortion, where nothing was due, ought to state that nothing was due ;(7) and if it be for taking more than was due, it ought to show how much was due.() And the extorsive agreement is not the offence, but the taking; for a pardon after the agreement, and before the taking, does not pardon the extortion.(i) The offence of extortion is punishable at common law by fine and imprisonment; and also by a removal from the office in the execution of which it was committed;() 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 *212] punished at the King's pleasure."(1) And an action lies to recover this double value.(m) It is an offence at common law to refuse to serve an office when duly elected.(n) And the refusal of persons to execute ministerial offices to which they are duly appointed, and from the execution of which they have no proper ground of exemption, seems in general to be punishable by indictment. Thus it has been held to be indictable for a constable, after he has been duly chosen, to refuse to execute the office,(o) or to refuse to take the oath for that purpose.(p) But a person is not liable to serve the office of constable unless he be resident in a parish. Where, therefore, a person occupied a house and paid all parish rates in respect of it, and carried on the trade of a printer, frequenting the house daily on all working days, and sometimes remaining there during the night at work, but not sleeping in the house, it was held that he was not liable to serve the office of constable in the parish where the house was situated.(g) But where a person occupied a warehouse in M., and usually slept at a lodging-house in M. from Monday till Saturday, when he returned to his mother's in H., where he also had premises, and he did suit and service to the court-leet of H., the Court thought that he was liable to be appointed a constable of M.(~) It is sufficient, in an indictment for refusing to execute the office of constable, to state that the defendant unlawfully, &c., "did neglect and refuse to take upon himself the execution of the said office;" and it is not necessary to state that he refused to be sworn.(s) Upon such an indictment, proof that he refused to be sworn is sufficient primâ facie evidence of a refusal to take the office; but if it (d) Rex v. Loggen, 1 Str. 73. (e) Rex v. Roberts, Carth. 226. (ƒ) Rex v. Burdett, 1 Lord Raym. 149; and see Rex v. Gillham, 6 T. R. 267. (g) Lake's case, Leon 268; Com. Dig. tit. Extortion. (h) Ibid. (i) By Holt, C. J., in Rex v. Burdett, 1 Lord Raym. 149. (k) 1 Hawk. P. C. c. 68, s. 5; Bac. Abr. tit. Extortion. (1) By the king's pleasure" is meant by the king's justices before whom the cause depends, and at their discretion: 2 Inst. 210. (m) Com. Dig. 323, tit. Extortion (C). (n) Rex v. Bower, 1 B. & C. 587 (8 E. C. L. R.). (0) Rex v. Lowe, 2 Str. 92; Reg. v. Chapple, 3 Campb. 91; Rex v. Genge, Cowp. 13; Rex v. Clerke, 1 Keb. 393. (p) Rex v. Harpur, 5 Mod. 96; Fletcher v. Ingram, 5 Mod. 127. (9) Rex v. Adlard, 4 B. & C. 772 (10 E. C. L. R.); 7 D. & R. 340; see Donne v. Martyr, 8 B. & C. 62 (15 E. C. L. R.). (r) Rex v. Mosley, 3 A. & E. 488 (30 E. C. L. R ); 5 N. & M. 261 (56 E. C. L. R.). See this case as to what is an excessive fine for refusing to serve the office. (s) Rex v. Brain, 3 B. & Ad. 614 (23 E. C. L. R.). were proved that, although not sworn, he had acted as constable, the refusal to take the oath would not prove that he refused to take the office. (s) Where there is a special custom of swearing-in constables, as in the city of London, it is unnecessary to set such custom out in the indictment.(s) The 1 & 2 Will. 4, c. 41, which authorizes justices in cases of tumult, riot, &c., to appoint special constables, enacts, by secs. 7 & 8, that any person appointed and neglecting to take the oath, and act, shall be liable to certain penalties.(t) So a person is indictable for refusing to take upon himself the office of overseer of the poor.(u) For though the 43 Eliz. c. 2 says only that certain *persons [*213 therein described shall be overseers, and gives no express indictment for a refusal of the 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.(v) But there should be previous notice of the appointment, and the indictment should show 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) An indictment for refusing to execute an office must aver that the party had notice of the appointment.(y) *CHAPTER THE FIFTEENTH. OF BUYING AND SELLING OFFICES. [*214 CONCERNING the sale of offices of a public nature, it has been well observed, that nothing can be more palpably prejudicial to the good of the public, than to have places of the highest concernment, on the due execution whereof the happiness of both king and people depends, disposed of, not to those who are most able to execute them, but to those who are most able to pay for them; nor can anything be a greater discouragement to industry and virtue than to see those places of trust and honor, which ought to be the rewards of persons who by their industry and diligence have qualified themselves for them, conferred on those who have no other recommendation than that of being the highest bidders; neither can anything be a greater temptation to officers to abuse their power by bribery and extortion, and other acts of injustice, than the consideration of having been at a great expense in gaining their places, and the necessity of sometimes straining a point to make their bargain answer their expectations.(a) The buying and selling such offices has therefore been considered an offence (s) Rex v. Brain, 3 B. & Ad. 614 (23 E. C. L. R.). () See also 5 & 6 Will. 4, c. 43, and c. 76, s. 83; 2 & 3 Vict. c. 93, s. 8. Special constables appointed under the 1 & 2 Will. 4, c. 41, continue to retain their authority till they have notice under s. 9 of the determination of their services, although such notice may not be given for many years: Reg. v. Porter, 9 C. & P. 778 (38 E. C. L. R.), Coleridge, J. (u) Rex v. Jones, 2 Str. 1145; s. c., 7 Mod. 410; 1 Bott. 360, pl. 377; Rex v. Poynder, 1 B & C. 178 (8 E. C. L. R.); s. c., 2 D. & R. 258; Rex v. Hall, 1 B. & C. 123 (8 E. C. L. R.); s. c., 2 D. & R. 241. (b) Rex v. Jones, 1 Bott. supra.. (w) Rex v. Harpur, 5 Mod. 96. In Rex v. Burder, 4 T. R. 778, it was held that an appointment of an overseer of the poor for the year next ensuing must be understood to be for the overseer's year: and an indictment, stating that the defendant was appointed "overseer of the poor of the parish of A.," and that he afterwards refused to take the said office of overseer of the parish to which he was appointed," was held good on demurrer. (z) Rex v. Bernard, 2 Salk. 52; 1 Lord Raym. 94. (y) Rex v. Fearnley, 1 T. R. 316; Rex v. White, Cald. 183; Rex v. Rex v. Kingston, 8 East 41. (a) 1 Hawk. P. C. c. 67, s. 3; Bac. Abr. tit. Offices and Officers. Winship, Cald. 72; malum in se, and indictable at common law. (b) In a case of an indictment for a conspiracy to obtain money, by procuring from the lords of the Treasury the appointment of a person to an office in the customs, it was proposed to argue that the indictment was bad on the face of it, as it was not a misdemeanor at common law to sell or to purchase an office like that of coast-waiter. But Lord Ellenborough, C. J., said that if that were to be made a question, it must be debated on a motion in arrest of judgment, or on a writ of error; but that, after reading the case of Rex v. Vaughan(c) it would be very difficult to argue that the offence charged in the indictment was not a misdemeanor. And Grose, J., afterwards, in passing sentence, said that there could be no doubt but that the offence charged was clearly a misdemeanor at common law. (d) The case of Rex v. Vaughan, was an attempt only to bribe a cabinet minister and a member of the Privy Council to give the defendant an office in the colonies.(e) And where the defendant, who was clerk to the agent for the French prisoners of war at Porchester Castle, took bribes in order to procure the exchange of some of them out of their turn, it appears to have been made the subject of an indictment.(ƒ) *But it has been endeavored to prevent the mischiefs of buying and selling offices, by several statutes. *215] The 12 Rich. 2, c. 2, enacted, "that the chancellor, treasurer, keeper of the privy seal, steward of the King's house, the King's chamberlain, clerk of the rolls, the justices of the one bench and of the other, barons of the Exchequer, and all other that shall be called to ordain, name, or make, justices of the peace, sheriffs, escheators, customers, comptrollers, or any other officer or minister of the King, shall be firmly sworn that they shall not ordain, name, or make, any of the abovementioned officers for any gift or brokage, favor or affection; nor that none which pursueth by himself, or by other, privily or openly, to be in any manner of office, shall be put into the same office, or any other, but that they make all such officers and ministers of the best and most lawful men, and sufficient to their estimation and knowledge."(g) The 4 Hen. 4, c. 5, ordained "that no sheriff shall let his bailiwick to farm to any man for the time that he occupieth such office." But a principal statute relating to this subject is the 5 & 6 Edw. 6, c. 16,(h) which, for the avoiding corruption which might thereafter happen in the officers, in places wherein there is requisite to be had the true administration of justice or services of trust, and to the intent that persons worthy and meet to be advanced should thereafter be preferred, enacts, that if any person bargain or sell any office, or deputation of office, or take any money or profit directly or indirectly, or any e promise, &c., bond, or any assurance to receive any money, &c., for any office or deputation of office, or to the intent that any person should have, exercise, or enjoy, any office, or the deputation of any office, which office, or any part or parcel thereof, shall in anywise concern the administration or execution of justice, or the receipt, controlment, or payment of the King's treasure, rent, revenue, &c., or any the King's customs, or the keeping the King's towns, castles, &c., used for defence, or which shall concern any clerkship in any court of record where justice is ministered; the offender shall not only forfeit all his right to such office or deputation of office, but also shall be adjudged a person disabled to have, occupy, or enjoy such office or deputation. The statute further enacts, that such bargains, sales, bonds, agreements, &c., shall be void;(i) and provides that the Act shall not (b) Stockwell v. North, Noy 102; Moor 781, s. c. (c) 4 Burr. 2494. (d) Rex v. Pollman, 2 Campb. 229. (e) 4 Burr. 2494. A criminal information was granted against the defendant for offering the Duke of Grafton, then First Lord of the Treasury, the sum of £5000 as a bribe to procure the reversion of the office of clerk of the Supreme Court of the island of Jamaica. (f) Rex v. Beale, cited in Rex v. Gibbs, 1 East R. 183. (g) For the exposition of this statute, see the Earl of Macclesfield's trial, 6 Sta. Tri. 477; 16 Howell's Sta. Tri. 767. 66 (h) Repealed, so far as regards the revenue of customs, or offices in the service of the customs," by 6 Geo. 4, c. 105, s. 10. (i) Sec. 3. |