#### Commonwealth *versus*Philip Bagley.

If an officer exacts the payment of a tee before it is due, it is extortion at common law.

The statute of 1795, c. 41, [See Revised Stat. c. *122,*§ 19,] regulating fees, and imposing a penalty for taking excessive fees, does not repeal the common law in this respect.

Where the keeper of a gaol, when a prisoner was committed on execution, demanded and received of the officer who committed him, and who paid the money on account and by direction of the judgment creditor, forty cents, being twenty cents for turning the key on the committal, and twenty cents for turning the key on the discharge of the prisoner, it was *held,*that taking at that time the fee payable on the discharge, was extortion at common law.

The indictment, which stated the money to be paid by the judgment creditor, was *held*to be right, the officer having paid it merely as the agent of the creditor.

This was an indictment against the defendant as deputy keeper of the gaol in Newburyport, for extortion. The first count was at common law, for demanding and receiving of Robert Morse twenty cents as a fee for turning the key for the discharge of John Osgood from gaol, when no fee was due at the time ; the second count was for demanding and receiving forty cents as a fee for turning the key of the gaol for committing Osgood on execution, being a larger fee than is allowed by law, and concluded “ contrary to the form of the statute,” &c.

At the trial of the case, before *Wilde*J., it appeared in evidence, that on February 8, 1827, John Merrill, a deputy sheriff, having taken the body of Osgood on an execution in favor of Morse, committed him to the gaol in Newburyport, of which Bagley was keeper. Merrill, being directed by the creditor to pay the necessary fees, paid Bagley forty cents, which sum was demanded and received by him as the fees for turning the key for the commitment and discharge of Osgood. Merrill paid the forty cents himself, which was afterwards repaid him by Morse, the creditor. Osgood remained a prisoner from the eighth of February until the fifteenth of the same month, when he was discharged by settling the debt. When Osgood was committed, Bagley stated to Merrill that the fees for the committing and discharging were forty cents, and that he took that sum at the time when a party was committed, be *286cause, unless he did so, he should, in many cases, never get the fee for the discharge, as parties committed were often discharged by order of law, and he had no means then of obtaining it. Bagley also stated, that when parties were committed on mesne process, he took but twenty cents at the time of commitment, as the fee for discharge in such cases would be always paid. The jury, under the direction of the court, returned a verdict against the defendant on the first count.

*Nov. 7th.*

The verdict was to stand, or to be set aside and a new trial granted, according to the opinion of the whole Court.

*J. Pickering*and Gerrish, for the defendant,

contended that the first count on which the verdict was recovered, being at common law, could not be supported, because the statute of 1795, c. 41, [see Revised Stat. c. 122, § 19,] regulating fees and imposing a penalty for extortion, had done away with the common law. The taking of the additional twenty cents in this case by the defendant was through a mistake of his rights ; there was no criminal intent, which is essential to constitute an offence. The payment was voluntary. There is nothing like oppression in this case, for the twenty cents for discharging must have been paid when the prisoner was discharged ; and it was more convenient for the creditor to pay forty cents at once. *Dunlap*v. Curtis, 10 Mass. R. 210 ; *Johonnot's*Case, 5 Dane, 199. No time is fixed by the statute of 1795, or by any previous one on the same subject, for the payment of the fee on discharging. *Prov. St.*4 *W. fy M. c.*18 ; 5 *Geo. 3, c. 30*; 13 *Geo.*3, c. 1 ; 33 *Geo.*2, c. 9 ; *St.*1786, c. 73. The Court will not, in a case of this kind, say that the fee was received too soon. Certainly it was not received wilfully and corruptly.

The evidence does not support the indictment, as the money is stated to have been taken of Morse, when in fact it was taken of Merrill. This conviction could not be pleaded in bar of another indictment for extorting money of Merrill.

*Minot*(County Attorney) *contra.*

The taking of the fee for discharging in this case was unlawful, as no such fee was due at the time. The case comes clearly within the definition of extortion given by the best authorities. “ *Extortio est cri*men, *quando quis colore officii extorquet quod non est debitum,*
      *287
      *eel quod est supra debitum, vel ante tempus quod est debitum.'' Beawfage,s Case,*10 Co. 102 ; Co. Lit. 368 ; Bac. Abr. *Extortion ;*4 B1 Com. 141 ; 2 Hawk. P. C. *c.*68. No offence against the *St.*1795, c. 41, was committed; the offence is extortion at common law. *Runnells*v. *Fletcher,*15 Mass. R. 525 ; *Shattuck v. Woods,*1 Pick. 174. Although the statute mentions no time for taking this fee, still it cannot be due until the time for performing the service arrives.

The opinion of the Court was afterward drawn up by

Parker C. J.

This is the case of an honest and meritorious public officer, who by misapprehension of his rights has demanded and received a lawful fee for a service not yet performed, but which almost necessarily must be performed at some future time.1 If we had authority to interpose and relieve from the penalty, we certainly should be inclined to do so, but we are only to administer the law. There is certainly no right in a prison-keeper to demand a fee for letting a man out of prison the moment he is put in, and it is extortion at the common law to receive, by color of office, a fee before it is due, though no more is taken than will in all probability soon become due. And the common law is not repealed by the statute which prescribes and limits the penalty. Merrill acting merely as the agent of Morse, it was rightly said in the indictment, that the extortion was from Morse.

*Judgment according to verdict.*

Proof that a justice has taken illegal fees by mistake, and misconception of the fee bill, is sufficient to make him liable. *Wallace*v. *Coates,*1 Ashmead, 110. See 2 Chit Crim. Law, (4th Am. ed.) 293, note *A.*