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dictment, alleging generally that the defendant extorted a sum of money colore officii (f), was sufficient after verdict, yet this was afterwards denied by Lord Holt to be law; for a verdict cannot render a charge more extensive, and, consequently, cannot cure a defect of that nature. It appears to be necessary, or at all events advisable, in an sindictment of this kind to aver, that the defendant, being u ch officer, took and received a specified sum of money, or other property, into his own possession; for merely to say, that he compelled a party to pay or deliver it, does not seem to be sufficiently certain (g). And to ave that he took it under colour of his office and extorsively ; for Lord Holt and some of his brethren were of opinion, that the word extorsive was as essential in that offence as proditorie in treason, or felonice in felony (h). Yet in actions against officers, to recover penalties for taking greater fees than are by law allowed, it does not seem to be essential to introduce the word, unless it be used in the statute. It is also necessary to aver for what he took it, as that, being a gaoler, he took it for charging A. B. a prisoner in his custody, with an action at the suit of J. S. brought to recover, &c. (i); for shewing ease and favour to A. B. a
(f) One who has acted in an office, cannot, although he has been informally appointed, be charged with extortion, under pretence and colour of being such officer. R. v. Dobson, 7 East, 218.
(g) R. v. Baines, 2 Ld. Ray.
(i) In the case of the King v. Broughton, Trem. P. C. 111. the indictment alleged, that the defendant being keeper of the king's prison of the gate-house, at Westminster, under colour of her office, unlawfully, unjustly, and extorsively, exacted, received, and took the sum of
(h) Salk. 680. Ld. Ray. 2s. 4d. from E. O. for charging
A. H. with an action at the
prisoner in his custody (k); for executing his duty as coroner (); for writing the probate of a will, (m) &c.; and this appears to be necessary, whenever the indictment is founded on a statute which interdicts the taking of fees by an officer for the performance of a particular duty, or which limits the amount of his fee. And in other cases, where it can be clearly shewn under what pretence the money was extorted, it seems to be proper to aver it. But notwithstanding the dictum attributed to Lord Holt in Salkeld (n), it does not appear to be in all cases essential to set forth the pretence.
For besides the authority of Cover's case, as reported in Siderfin and Keble (o), it appears, that in the very same term the case of the King v. Atkinson (p) and another was decided in the Queen's Bench. The indictment alleged, that the defendants, being collectors of several sums assessed upon the inhabitants of, &c. by colour of their office, exacted, received, and had, of one T. C. of L. the sum of 4s. without alleging, that they pretended that such sum had been assessed upon them. The defendants demurred, and contended that the indictment was vicious for a misjoinder, but the objection was overruled; and it was never contended, that the indictment ought specially to have alleged the pretence. So there is a precedent in West of
suit of E. O. for the sum of 2001.
And in another count, that the defendant unlawfully, unjustly, and extorsively exacted, received, and took, &c. from one H. M. the sum of two guineas, for ease and favour, and for relieving one B.D. from his irons, being then a prisoner in the said prison, and in the custody of the said defendant,
detained for a felony and murder by the said B. D. lately and then supposed to have been committed.
(k) R. v. Broughton, Trem.
(1) West. Pr. sec. 108, 109.
an indictment against an escheator's servant, which alleges generally, that he broke and entered a certain dwellinghouse, and under colour of his office seized and carried away certain skins against the form of divers statutes (q). And whenever the extortion is effected by means of a general assertion, that the sum is due to the officer in respect of his office, the means must of necessity be generally alleged in the indictment. And the distinction seems to be between those cases where the extortion may be committed generally, and those where the taking is prohibited by a statute in respect of some particular duty; for, in the latter case, it is of course essential to shew that the demand was made in respect of that duty; and, therefore, in Lindly's case (r), in an information against the defendant, who made an extortionate demand for making a warrant upon a capias ad satisfaciendum, it was helden to be insufficient to aver, that he did it colore officii, and that it should have been shewn to whom the capias was directed, &c.
Finally, it should be shewn, with certainty, how much was extorted. In the report of Baynes's case, in Salkeld (s), Lord Holt, and the six justices who agreed with him, held, that the charge should have been, either that 3s. was his fee, and that by colour of his office he took 8s. or generally, that by colour of his office, he extorsively Look 8s.
And in most of the precedents of indictments for this offence, it is either averred, that nothing was due to the defendant, or as in the case of Atkinson and another above alluded to, that the defendants, being collectors of certain sums assessed, exacted, &c. from one T. C. being in no wise assessed by virtue of the act of parliament afore
(7) West. Pr. scc. 110, and see R, v. Lake, 3 Lev. 268,
(r) Hutt. 70.
(s) Salk, 680.
said (t). But where the taking is manifestly unjust and unlawful, as where the taking of any fee for performing a particular duty is wholly prohibited by a statute, it does not appear to be essential to aver that nothing was due, because the law will intend it (u).
But where the officer is entitled to one fee, and extorts a greater, then the indictment ought to shew the excess in which the extortion really consists; for, where something is really due, it seems to be improper to allege, that the whole was wrongfully extorted, and since, according to a well-known rule in pleading, the extent of the offence ought to be shewn, it appears to be necessary to allege, how much was really due, and how much the defendant took (x); and, in such case, it seems that a variance upon the trial would not be material, provided it were shewn that the sum actually taken exceeded that alleged and proved to be allowed by law (y).
And this rule extends to all cases of illegal imposition or exaction: thus, in the case of the King v. Flint (z), the indictment against the defendant, for making loaves of unlawful weight, alleged, " debitum pondus minime habens;" and it was bolden to be insufficient, for not shewing what the debitum pondus was, and how much was wanting.
Of a nature similar to the last, is the offence of a private person who extorts money by threat of legal process. In
(t) See also West's Tr. s. 108, 109. R. v. Broughton, Trem. 111.
(u) See also West's Pr. s. 108, 109. R. v. Broughton, Trem. 111. and R. v. Loggen and another, Str. 73.
(x) R. v. Baines, Salk. 680.
Ld. Ray. 1265. R. v. Loggen,
(y) See R. v. Gilham, 6 T. R. 265. and R. v. Baynes, Ld. Ray. 1265. West. Pr. sec. 111. (z) Salk. 687. Ld. Ray. 442..
the case of the King v. Southerton (a) it was holden, that the threatening by letter, or otherwise, to prosecute for penalties under a statute, for the purpose of obtaining money to stay the prosecution, was not an indictable misdemeanor at common law, although the indictment alleged that money was actually obtained, but that the offence was indictable under the statute.
It has already been seen, that in an indictment for sending a threatening letter, which is a capital offence, whether money or valuables be extorted by it or otherwise, the letter itself must be set out, to (b) enable the court to judge whether the latter is within the statute. But with respect to other attempts to extort or exact, it does not seem to be essential to set forth the very words in which the illegal demand was made.
In case of a criminal omission to perform a duty, it is necessary to set out the circumstances of the default; as in an indictment against a parish for not repairing an highway, or against a county for not repairing a bridge, it is necessary, by proper averments, to shew where the highway or bridge are situated, and that they are in an unfit state to be used by the public; and it has been holden necessary, in indictments for not repairing an highway, to state the extent of the evil complained of, by setting forth the length and breadth of the road out of repair (c).
V. Illegal Combinations and Conspiracies.
In an indictment for a conspiracy it is usual to allege, that the defendants unlawfully and wickedly did conspire, combine, confederate, and agree together, to effect the
(a) 6 East, 126. See also R. v. Woodward, 11 Mod. 137. (b) Girdwood's case, Leach,
169. R. v. Loyd, East, P. C. 976.
(c) 1 Haw. c. 26. s. 88. Cas. temp. Hard. 106. 316.