king, and the other to the said A. I. the said informer ; and the said A. 1. prays, &c. [so proceed as in the said precedent to the exami. nation of the witness, and then say,] that on the day of he the said A. W. by the order of the said A. O. threw pound weight of brimstone upon the fire which was then using for the purpose of drying weight of hops belonging to the said A. O. -, which brimstone was so put in a certain hop oast, situate at on the said fire for the purpose of making the said hops have a better colour; and he the said A. W. on his oath aforesaid saith that the vapour and fume of the said brimstone ascended to the hops placed over such fire, and the hops being then in a moist state such fume and vapour settled and fixed on the hops and mixed with the same, whereby the colour thereof was changed, and the hops appeared brighter than they would have appeared, if they had not been so mixed with the fume and vapour of brimstone [or as the proof may be]. And he the said A. O. being called, &c. N. B. All proceedings for the recovery of penalties, &c. under the Excise Laws being regularly instituted and conducted by the excise officers, under the direction and controul of the Board of Excise, who supply their own forms of Informations, Summonses, Convictions, and Warrants, for which they are of course responsible, it has not been thought necessary to add to those which have appeared in former editions of this work, and especially as the excise officers will not permit an Information to be laid, or a Conviction to be drawn out, except in their own forms. Execution. § 3. WHERE a person attainted hath been at large after his attainder, 2 Haw. c. 51. and afterwards is brought into court and demanded why execution should not be awarded against him, if he deny that he is the same person, it shall immediately be tried by a jury returned for that purpose. Vid. Ratcliff's case, Fost. 40, 41. The court may command execution to be done, without any Id. § 4writ. 2 Haw. c. 48. In fixed and stated judgments, the law makes no distinction between a peer and a commoner, or between a common and ordinary § 2. case, and one attended with extraordinary circumstances; for which reason it was adjudged in Felton's case, who murdered the duke of Buckingham, that the court could not order his hand to be cut off, nor make it part of the sentence that his body should be hanged in chains, but that the body after execution, being at the king's disposal, might be hung in chains, or otherwise ordered as the king should think fit. An execution cannot be lawfully executed by any but the proper Haw. c. 51. officer. § 6. 2 Hale, 411. It must be done pursuant to the judgment, and cannot be al- Hale's Sum. 272. tered by the king, as from beheading to hanging. 2 Hale, 411. But the king may pardon part of the execution; as in treason 2 Hale, 412. he may pardon all but the beheading. Hale's Sum. 272. He may alleviate, but cannot aggravate, punishment beyond the Fost. 269. intention of the law. It is clear that if a man, condemned to be hanged, come to life 2 Haw. c. 51. after he be hanged, he ought to be hanged again; for the judg- $7. ment was not executed till he was dead. For execution in cases of Murder, see Homicide. Exigent. See Process. I Haw. c. 68. § I.. 3 Ed. . c. 26. 2 Inst. 209. Dalt. c. 41. R. v. Dobson. 7 East, 218. 2 Inst. 210. I Haw. c. 68. § 2. Id. 2 Inst. 210. Extortion. [3 Ed. 1. c. 26. —31 El. c. 5.] IT is said that extortion, in a large sense, signifies any oppression under colour of right; but that in a strict sense it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due. And by the statute of the 3 Ed. 1. c. 26. (which is only in affirmance of the common law) No sheriff, nor other the king's officer, shall take any reward to do his office, but shall be paid of that which they take of the king; and he that so doth shall yield twice as much, and shall be punished at the king's pleasure. No sheriff nor other the king's officer] Under these words, the law beginning with the sheriffs, are understood escheators, coroners, bailiffs, gaolers, and other inferior officers of the king, whose offices were instituted before the making of this act, which do any way concern the administration or execution of justice, or the common good of the subject, or for the king's service. Also the justices of the peace, whose office was instituted after this 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 shall take any other fees or rewards for doing any thing relating to his office than some statute in force gives him, or else as hath been anciently and accustomably taken; and if he do otherwise, he is guilty of extortion. But where a person was appointed collector of certain duties under stat. 43 G. 3. c. 99. by the proper constituted authorities, and considered himself and was considered by those authorities to be such collector, but whose appointment was informally made, it was decided that he could not be indicted at common law for the receipt of duties by colour and pretence of being collector of such duties, though the money were fraudulently collected and misapplied by him, because he was in fact appointed collector, and in that character received the money. Shall take any reward] Therefore by this statute, they can at this day take no more for doing their office than hath been since allowed to them by authority of parliament. All prescriptions which have been contrary to this statute, and to the common law in affirmance of which it is made, have been always holden to be void. It has been resolved, that a promise to pay them money for doing of a thing, which the law will not suffer them to take any thing for, is merely void. To do his office] It is not said, that he shall take no reward generally, but no reward to do his office: thus the fee of 20d, called bar fee, time out of mind taken by the sheriff of every prisoner that is acquitted, is not against this statute; for it is not taken for 369 But there seems to be no necessity for this distinction; for it 1 Haw. c. 68. cannot be intended to be the meaning of the statute to restrain the $3. courts of justice, in whose integrity the law always reposes the highest confidence, from allowing reasonable fees for the labour and attendance of their officers; the chief danger of oppression is from officers being left at their liberty to set their own rates on their labour, and make their own demands; but there cannot be so much fear of these abuses, while they are restrained to known and stated fees, settled by the discretion of the courts, which will not suffer them to be exceeded, without a proper resentment. But in the ecclesiastical court a person was libelled against for Gifford's case, fees, and upon motion a prohibition was granted, for that it was 1 Salk. 333. holden that no court had a power to establish fees; the judge of a court may think them reasonable, but that is not binding; but if on a quantum meruit a jury think them reasonable, then they become established fees. The fees in Sessions, for traversing, trying, or discharging indict- Dalt. c. 41. ments, discharging recognizances, and the like, do vary according to the different customs in different places. Shall yield twice as much] At the common law this offence is 2 Inst. 210. severely punishable at the king's suit by fine and imprisonment, 1 Haw. c. 68. and also by a removal from the office in the execution whereof it § 5. was committed. And this statute doth add a greater penalty than the common law did give; for hereby the plaintiff shall recover his double damages. And by the 31 El. c. 5. actions for extortion may be laid in any 31 El. c. 5. county. At the king's pleasure] That is, by the king's justices, before whom the cause depends. 2 Inst. 210. Indictment for extortion in a gaoler. County of THE jurors for our lord the king upon their oath { yeoman, on the present, that A. O. late of day of in the in the said county, year of the reign of · was taken upon suspicion of having committed a certain felony, by constable of in the said county, by virtue of a warrant directed to the said under the hand and seal of Sir William Dalston, knight, then and yet one of the justices of our sovereign lord the king assigned to keep the peace in the said county, and was on the same day in the year aforesaid committed by him the said Sir William Dalston to A. G. keeper of the gaol of our said sovereign lord the king at in the said county, under the custody of him the said A. G. to be safely kept, upon suspicion of the felony aforesaid, and the said A. O. was detained in that prison under the custody of the said A. G. from the time that he was committed to the said prison for one month from thence next ensuing, upon suspicion of the said felony; nevertheless the said A. G. being such keeper as aforesaid, in no wise regarding the statute in that case made, and the penalty therein contained, did on the day of aforepounds of lawful at said, in the said county, demand and receive VOL. II. BB vour in the said gaol for the said time, in contempt of our said sovereign lord the king, and against the form of the statute aforesaid, and against the peace of our said sovereign lord the king, his crown and dignity. Indictment for extortion of a bailiff. County of THE jurors for our lord the king upon their oath present, of} that A. B. la te of· being bailiff of the hundred of. in the in the said county, yeoman, in the said county, on the year of the reign of at in the day of said county, by pretext and colour of his said office, did unjustly and by extortion take and extort 5s. of one A. I. of in the said county, yeoman, one of the freeholders qualified to serve upon juries in the said county, to excuse the said A. I. from attending or appearing at the assizes that were then next to be holden in and for the said county, when in fact the said A. I. was not returned by the sheriff of the said county in any panel of jurors, and also when indeed no such sum of money was due to the said A. B. for his fee for excusing the attendance or appearance of the said A. I. at the assizes aforesaid, to the evil example of other offenders, to the great damage of him the said A. I. and against the peace of our said lord the king, his crown and dignity. BY the 2 & 3 Ed. 6. c. 19. for the encouragement of the fisheries, and the increase of cattle, and the 5 El. c. 5. intituled, “An act touching politic constitutions for the maintenance of the navy," and by the 35 El. c. 7. certain restrictions were imposed with regard to eating on certain fast days; but these statutes have long since fallen into disuse, and may be deemed obsolete. Fees. See Extortion. |