Extortion, definition of. Refusing to execute writ until extortion. Other in instances of extortion. Having thus ascertained what fees are by law allowed to Sheriffs in the execution of civil process, &c., it becomes more easy to comprehend and define the offence of extortion. EXTORTION in a large sense denotes any oppression under colour of right; but it is usually (as here) applied to that abuse of public justice, which consists in the unlawful taking of money or valuable thing by any officer colore officii (h) from another, when none at all is due, or not so much is due, or before it is due: " extortio est crimen quando quis colore officii extorquet quod non est debitum vel quod suprà debitum vel ante tempus quod est debitum (i). The distinction between bribery and extortion seems to be this: the former offence consists in the offering a present, or receiving one if offered; the latter, in demanding one by colour of office. This being the definition and nature of the offence, it follows that if an Under-sheriff refuse to execute a ca. sa. or fi. fa. &c., fees are paid unless his fees are paid, the High Sheriff will be liable in damages for not doing his duty; or after taking the fees, because taken before due, the officer so taking them will be guilty of extortion (k); so likewise it is extortion to take a bond for his fee before execution is sued out (l); or to admit a prisoner to bail upon an agreement to receive a certain sum when the prisoner should pay to a third person another sum of money (m); or the taking any thing of any person for the sparing, not warning, or not returning him to serve as a juryman or otherwise at the assizes, sessions of the peace, or at any other Court; or the taking of money or other reward for omitting to arrest or attach another, or for any other omission of duty, is extortion; so if the Sheriff or gaoler detains one in prison (after being duly discharged) for meat, drink, or other thing, except for their lawful fees only, it is extortion. Declaration for extortion on mesne process. For extortion on mesne process, when the officer exacted from the defendant more than what was allowed by law, the course (h) Dist. " virtute officii" and "colore officii," 2 Inst. 206; Co. Litt. 368. (i) 10 Co. Rep. 102; Co. Litt. 368; 2 Salk. Rep. 680; 1 Hawk. P. C. 419; Archb. Crim. Pl. 494, and cases cited. (k) Hescott's Ca. 1 Salk. Rep. 330; 1 Hawk. P. C. 419. (1) Hut. 53; Ex parte Evans, 2 Bos. & Pul. 88. (m) 2 Burr. 924. was to declare in debt at the suit of the party grieved, against the Sheriff or the party offending, thus: 1st count, on the 23 Hen. 6, c. 9, for treble damages, &c. 2d count, on 32 Geo. 2, c. 28, for the 50l. penalty, &c. 3d count, for money had and received, that is, for the excess over legal fees. The two last counts (the statute of Hen 6 being expressly repealed) may still be inserted, and that too consistently with the pleading rules of Hilary term, 4 Will. 4, as they are for distinct causes of action. For extortion on final process, it was usual for the party For extorgrieved to declare in debt on the 28 Eliz. c. 4, for treble da- tion on final mages, thus: 1st count, on statute for treble damages, &c. 2d, money had and received. Or to proceed in debt at the suit of the common informer on the 23 Hen. 6. Or on the 28 Eliz. as the case might be (n). process. Debt. Or to proceed by indictment at common law against the party Indictment. offending (o). The present remedies then (if the effect of the recent statute Present rebe as stated) are the following: 1. On the 32 Geo. 2, c. 28, for the 50l. penalty. 2. By summary application to the Court on 1 Vict. c. 55, which is cumulative (p). 3. By indictment at common law. medies. The statute of 32 Geo. 2 enacts, "That no Sheriff, &c. shall 32 Geo. 2. demand, take, or receive, or cause to be demanded, taken, or received, directly or indirectly, any other or greater sum or sums of money than is or shall be by law allowed to be taken or demanded for any arrest or taking, or for detaining or waiting till the person or persons so arrested or in custody shall have given an appearance on bail," &c., under the penalty of 501., to be recovered with treble costs of suit by action of debt, &c. The declaration, (if the action be brought against the High DeclaraSheriff, as it may be) (q), after stating the issuing of the capias, tion. delivery to the Sheriff, and the arrest, proceeds to allege the de (n) See Prec. 2 Ch. Pl. 330, 332. (0) Smith v. Malt, 2 Roll. Rep. 263. (p) Sharp v. Warren, 6 Price, 131; Cowp. 297. (q) 2 Term Rep. 154. Pleas. Evidence. fendant's extortion, thus (r): " And the now plaintiff further time of the taking thereof was by law allowed to be demanded or taken by the now defendant of and from the now plaintiff. Whereby and by force of the statute, &c. the now defendant forfeited," &c. 2d count, money had and received. 3d count, account stated. To the special count the defendant may (it being on a penal statute) (u) plead "nil debet," and give the special matter in evidence under it, and its effect is, if pleaded, to put the plaintiff in proof of all the material allegations in his declaration in the first instance. To establish the defendant's extortion (the other allegations having been already considered) plaintiff should produce a proper table of fees. In Martin v. Bell (x), where there was no table applicable to the fees in question, it was holden that evidence of the allowance by the officer of the Court upon taxation was prima facie evidence of what was allowed by law and this evidence would seem, on reference to the words of the statute of Victoria, sufficient at this day without the production of a table of fees (y). The plaintiff is entitled to recover the 50l. penalty, with treble Treble costs costs of suit (z). how calcu. lated. 2. By summary application to the Court under 1 Vict. c. Summary 55 (a). Complaint may be made upon oath either by the examination of witnesses vivá voce, or on affidavits, or on interrogatories, and the party offending (if the complaint be made in due time, that is, before the last day of the term next following the act whereof complaint is made) will be adjudged guilty of a contempt of Court, and punished accordingly. application to the Court under the new statute. In the Queen's Bench. Affidavit. Between A. B. Plaintiff, C. D. Defendant. C. D. of day of the above named defendant, maketh oath and saith, that A. B., the above named plaintiff, on or about the A. D. 1839, in the Court of Queen's Bench recovered against this deponent a certain debt of £ and also costs, which in and by the consideration and judgment of the same Court were adjudged to him, the said A. B. for his damages which he had sustained, as well by the occasion of the detaining of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof this deponent was convicted and this deponent further saith, that the said judgment being in full force and the said debt and damages remaining unpaid and unsatisfied, the said A. B., on, &c., for the obtaining of satisfaction thereof, sued and prosecuted out of the said Court of Queen's Bench a certain writ of our lady the Queen, called a fieri facias, directed to the Sheriff of Westmoreland, by which said writ our lady the Queen commanded the said Sheriff that of the goods, chattels, monies, bank notes, cheques, bills of exchange, promissory notes, and other securities for money of this deponent in the said Sheriff's bailiwick, he should cause to be levied the debt and damages, and that he should have that money before our lady the Queen at Westminster aforesaid immediately after the execution thereof, to render to the said A. B., the above named plaintiff, for his debt and damages aforesaid: and this deponent further saith, that the said writ was afterwards and before the delivery thereof to the said Sheriff, that is to say, on or about, &c., duly indorsed with a direction for the said Sheriff to levy £ besides Sheriff's poundage, officers' fees, and all other incidental expenses: and this deponent further saith, that the said writ so indorsed, afterwards and before the said execution thereof, that is to say, on, &c., was delivered to Henry Earl of Thanet, who then and from thence until and at and after the execution of the said writ, was Sheriff of the said county of W., to be executed in due form of law: and this deponent further saith, that by , (z) How calculated, see ante, p. 379. (a) Vide statute set out at length, ante, p. 383. Costs of application. Proceeding by indict virtue of the said writ, the said Henry Earl of Thanet, so being such The Costs are in the discretion of the Court. 3. By indictment at common law. ment. Statute of SECTION IX. FOR TAKING GOODS OFF PREMISES WITHOUT SATISFYING LANDLORD. On Stat. 8 Ann. c. 14. The statute enacts" that from, &c. no goods or chattels whatsoever lying or being in or upon any messuage, lands or tenements, which are or shall be leased for life or lives, term of years, at will, or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out shall, before the |