#### Archibald Dunlap *versus.*Seth Curtis.

The penalty of thirty dollars, given by.the fee bill against'officers-guilty of demanding and receiving greater fees than authorized by the statute, is not incurred where the fees are- demanded of, or voluntarily, paid by, a. person-not liable to the officer therefor..

This was an action of debt, brought against1 the- defendant, a deputy sheriff for this county, for the penalty of thirty dollars, given by the sixth section of the statute of- 1795, c; 41, commonly called the *fee bill,*for demanding and: receiving of the plaintiff ' a- greater fee than by that statute is allowed:

The declaration charged- the defendant with corruptly and wilfully demanding and receiving of- the plaintiff,.for the service of an original writ of attachment returnable before a, justice ■ of- the ■ peace, in which writ one *Samuel Averill*was plaintiff, and: the said' *Dimlap,*the now plaintiff, was defendant, the sum of one dbllar and1 fifteen cents, whereas his legal fee for said service,.as-the plaintiff avers; was the sum of fifty-four cents, and no more.

On the trial of the action, before *Thatcher, Si,*on - the general issue of *ml debet,*it appeared that the defendant: had charged; the legal: fee of thirty cents for the service of the writ, strictly so-called, and-that the excess was-in the-charge-for travel: The-sumrihus-unduly

charged was-included'-in the-bill of costs taxed' by- the said. *Averill*in the judgment recovered'by him:against Dunláp,- and ¡was-paid .to *Curtis*upon the execution, which issued-on that judgment:.

The judge- at the trial- instructed! the ■ jury that by the word - *services*in .the statute-was intended! only.- those which were-strictly, and technically so-called; and that the-travel! of an officer;'.necessary- to the service of the writ, was not incltidedl therein.- The jury having returned a verdict for the defendant, exceptions-were? filed bv the plaintiff to the opinion of the judge.

*Wilde,*for the plaintiff,

argued that, although in-common parlance the service of a writ or process may be distinguished from the travel1; necessary to such service, yet, unless the- travel Iwas included in the word *services,*as used in, the- section * of [*211 ], *218the statute giving the penalty demanded in this action, there was no restraint or punishment provided for this species of extortion. The service is not completed until the writ is returned; and the travel is necessary to the return.

Mellen, for the defendant,

contended that the statute in several places distinguishes the service of writs from the travel of the officer, and sometimes places them in direct opposition. A penalty given by a statute is not to be extended, by construction, to a case not within the words, and particularly by giving to a legal technical term a meaning not necessarily included in , it.

*Per Curiam.*

The extortion to be punished by a penalty against an officer, who receives more than lawful fees by color of his office, supposes a right to demand fees of the person who pays them. The excess demanded and taken is then extorsive; and the offence is to be punished by the penalty given by the statute, to be recovered by any person who will sue for the same, or by indictment.

But fees demanded of a person not liable, or voluntarily paid by a person not liable, although improperly and unjustly taken and accepted by the officer, and although, in certain cases, he may be punishable for the cheat or fraud, yet this is not extortion, as the fees, if excessive, are not obtained by color of his office.

In the case at bar, the fees complained of, as paid by *Dunlap,*the defendant in the suit upon which the fees were demanded and taken, were not due from him. He w'as not liable to the officer for the service of the writ; and if he interfered to answer an unlawful demand, or voluntarily paid the officer what he demanded for his service, the fees were not extorted from him, by any power which the officer had to demand them under color of his office. This is not, therefore, the case for which the penalty is provided.

Upon this ground, and not on the construction given to the statute by the judge who sat at the trial, the verdict taken for the defendant is confirmed, and judgment is to be entered accord ingly. *(a)*

ADDITIONAL NOTE.

[See *estate*vs. Fields, *Mart. & Y.*137. — *Cross*vs. *The*State, 1 *Yerg.*261*—Garnet vs. The State,*5 *Yerg.*160.— *Whitted*vs. *The Governor,*&c., 6 *Por.*335.— F. H.]

(a)

*[Runnels vs.*Fletcher, 15 *Mass. Rep.*525. — *Skattuck*vs. *Wood,*1 *Pick.*171. — *Commonwealth*vs. *Shed,*1 *Mass. Rep.*227. — Ed.]