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beneficial one; (w) for, by the implied condition that the grantee of an office shall execute it diligently and faithfully, it appears to be clear that he will be liable to a forfeiture of it, not only for doing a thing directly contrary to its design, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by or for whom he was made an officer. (X) A coroner neglecting the duties of his office is indictable: (y) and by statute 3 Edw. 1. c. 9. the sheriff, coroner, or any other bailiff concealing felonies, or not arresting felons, or otherwise not doing their duty, are to be imprisoned for a year, and fined at the king's pleasure. (z) And an indictment lies at common law against all subordinate officers for neglect, as well as misconduct, in the discharge of their official duties. A constable is therefore indictable for neglecting the duties required of him by common law or by statute; (a) and when a statute requires him to do what without requiring had been his duty, it is not imposing a new duty, and he is indictable at common law for the neglect. (b) And an overseer of the poor

is indictable for the wilful neglect of his duty. Thus overseers have been held to be indictable for not providing for the poor ; (c) for refusing to account within four days after the appointment of new overseers, under 43 Eliz. c. 2.; (d) for not making a rate to reimburse constables under 14 Car. 2. c. 14.; (e) and for not receiving a pauper sent to them by order of two justices; (f) or disobeying any other order of justices, where the justices have competent jurisdiction. (8)

It was the opinion of a majority of the learned Judges present Overscers of at the discussion, that an indictment would not lie against an

the poor pu

nishable for overseer for not relieving a pauper, unless there were an order for neglecting to his relief, except in a case of immediate emergency, where there relieve pauwas not time to get an order. (2) But there may be cases in pers. (w) 4 Blac. Com. 140.

i Bott. 333. Rex v. Winship and (2) i Hawk. P. C. c. 66. s. 1. And Another, Cald. 72. see further as to forfeiture of offices, (d) Rex v. Commings, 5 Mod. 179. Com. Dig. Officer, (K. 2.) (K. 3.) and 2 Nol. 453, 476. where it is observed the Earl of Shrewsbury's case, 9 Co. in the note (3) that this case occurred 50.

prior to 17 Geo. 2. c. 38. (y) See precedents of indictments (c) Rex v. Barlow, 2 Salk. 609. against coroners for refusing to take 1 Bott. 332. The objection was, that inquisitions, or for not returning in- the word used in the act is “may," quisitions according to evidence, 2 which does not require it as a duty. Chit. Crim. Law, 255. Cro. Circ. Comp. But the Court held the word “

“may” (81b ed.) 170. (7th ed.) 303, 304. to be imperative, and the same as

(2) Ante, p. 135, 136. And by 3 “shall.” By 18 Geo. 3. c. 19. conHen. 7. c. 1. if any coroner be remiss, stables are now to be paid for parish and make not inquisition upon the business out of the poor's rate. view of the body dead, and certify (f) Rex v. Davis and Another, 1 not, as ordained in the statute, he Bott. 338. Pl. 409. Say. 163. S.C. shall, for every default, forfeit to the (g) 2 Nol. 476. Rex v. Boys, Say. king a hundred shillings.

143. But otherwise where the jus(a) Regin. v. Wyat, 1 Salk. 380. tices have no jurisdiction, Rex v. Crowther's case, Cro. Eliz. 654; in- Smith, 1 Bott. 403. Pl. 526. dictment against a constable for re- (x) Rex v. Meredith and Turner, fusing to make bue and cry after no- Russ. and Ry. 46. This case occatice of a burglary,

sioned much doubt and discussion. (6) Regin. v. Wyat, 1 Salk. 381. It came under consideration in Mich. (c) 2 Nolan 476. Tawney's case, Term, 1802, and was adjourned until

which the veglect to provide a pauper with necessaries will render an overseer liable to be indicted. Thus where an indictment stated that the defendant, an overseer, had under his care a poor person belonging to his township, but neglected and refused to provide for her necessary meat, &c. whereby she was reduced to a state of extreme weakness, and afterwards through want of such reasonable and necessary meat, &c. died, the defendant was con. victed, and sentenced to a year's imprisonment. (y) And in a case where an overseer was indicted for neglecting to supply medical assistance, when required, to a pauper labouring under dangerous illness, the learned Judge before whom the indictment was tried held that an offence was sufficiently charged and proved, though such pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish

relief. (-) Indictment for Upon an indictment against an officer for neglect of duty, it is neglect of

sufficient to state that he was such officer, and it is not necessary duty.

to state his appointment. (1) And in the case of a delinquent in
India prosecuted under 24 Geo. 3. c. 25. for neglect of duty, it
was held not to be necessary to state that the neglect was corrupt;
the statute making it a misdemeanor if it was wilful. (m) And
the indictment for neglect of duty need not aver that the de-
fendant had notice of all the facts it states, if it was his duty to
have known them. (n) Where some of the charges against the
defendant were for disobeying orders, and it was stated that those
orders were made and communicated to him, but their con-
tinuance in force was not averred, such an averment was insisted
upon as essential: hut the court said that the orders must be taken
to continue in force until they were revoked; and the objection
was overruled. (0) Other charges in the same case against the
defendant were for not acting upon particular events, within the
settlement, as those events made it his duty to act: but it was not
averred that he had notice of those events. The Court, however,
held that an allegation of notice was not necessary; for as the
events happened within a foreign settlement, whilst the defendant
was one of the council in such settlement, he was bound to take
notice of them. (p)
the following Hilary Term, when it recognizance to appear, and receive
was further adjourned, as there was a judgment when called upon.
a difference of opinion among the (y) Rex v. Booth, Russ. and Ry. 47.
Judges. Lord Ellenborough, C. J. note (a).
Lord Alvanley, C. J, Heath, J. Rooke, (2) Rex v. Warren, cor. Holroyd, J.
J. and Graham, B. seemed to be of Worcester Lent Assizes, 1820. In a
opinion that the indictment was good, case where the parents of a bastard
and the conviction proper, the over- child had neglected to provide neces-
seer having taken the pauper under saries for its subsistence, it was de-
his care: but M.Donald, c. B. Grose, cided that the officers of the parish
J. Thomson, B.. Lawrence, J. Le in which the child was born were
Blanc, J. and Chambre, J. thought obliged to provide such necessaries
otherwise, and were of opinion, that, without an order of justices, Hays v.
except in a case of immediate and Bryant, 1 H. Blac. 253.
urgent necessity, the overseer was (1) Rex v. Holland, 5 T. R. 607.
only bound to act under an order of

(m) Id. Ibid.
justices, in a case where such an order (n) Id. Ibid.
could be had. It was agreed that the

(0) Id. Ibid. defendant should enter into bis own

(p) Id. Ibid.

soned.

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.

The absence or misconduct of the chief officers of corporations Chief officers at the time of elections, whereby the completion of the election of corporaof 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 from, or hinenacts, “ that if any mayor, bailiff or bailiffs, or other chief officer dering the

elections of or officers of any city, borough, or town corporate, shall volun- other officers, “ tarily absent himself or themselves from, or knowingly and de- may be impri

signedly 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. (i) 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; (1) 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 Last. 372.

(k) Rex v. Martin, 2 Campb. 268. (i) Rex o. Bembridge and Another, (1) See Towoson v. Wilson, 1 Campb. cited 6 East. 136.

396.

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 officers, By the 56th Geo. 3. c. 63. which was passed to regulate the &c. of the ge general penitentiary for convicts at Millbank, provision is made tiary at Mill- for the punishment of the governor and the other officers and bank. servants of that establishment, in case of any fraudulent or im

proper 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 indictinents 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 by 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 affirniance 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. (c) 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 generally no public officer may take any other fees or rewards for doing any thing relating to his office tha! 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. (1) .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. (9)

(m) Rex v. Holland, 5 T. R. 607. (0) 2 Inst. 209. 2 Burn. Just. tit. (n) 4 Blac. Com. 141. 1 Hawk. P. C. Extortion, p. 393.

e. 68. S, 1.

But the stated and known fees allowed by the courts of justice The stated fees to their respective officers, for their labour and trouble, are not justice may be restrained by the common law, or by the statute of Westm. 1. insisted upon. c. 26. and therefore such fees may be legally demanded and insisted upon without any danger of extortion. (-) 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. (TM)

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 churchwarilen 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, (z) it will be extortion. And it will be the same offence in a sherit"'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. court said that the plaintiff might Extortion, p. 341.

bring an action against him for vot (9) ] Hawk. P. C. c. 68. s. 2. 3 Bac. doing his duty, or might pay him bis Abr. 108. tit. Extortion.

fees, and then indict him for extortion. (r) I Hawk. P.C. c., 68. s. 3. 2 Inst. (-) Empson v. Bathurst, Hutt. 53, 210. Co. Lii. 363. 3 Bac. Abr. 108. where it is said that an obligation tit, Extortion.

made by extortion is against common ($) 3 Bac. Abr. 103. tit. Extortion. law, for it is as robbery; and that the 2 Inst. 210. 3 lust. 149. Co, Lil. 369. Sheriff's fee is not due until execution.

(1) 3 Bac. Abr. 108. til. Extortion. (a) Stotesbury v. Smith, 2 Burr.924.

(u) Rex v. Loggt'n aod another, (0) Williains v. Lyons, 8 Mod. 189. I Str. 73.

(c) Rex v. Broughton, Trem. P. C. (w) Roy v. Eyres, 1 Sid. 307.

Ill. Stark. 588. (7) 3 Inst. 149.

(d) Rex v. Burdett, 1 Lord Raym. (y) Hestcott's case, 1 Salk. 330. The 149. VOL. I.

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