Dunlap v. Curtis

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.]

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