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Extortion, what.

Remedies for.




The travelling expenses of the Under-sheriff from his office, and of the
Bailiff from his residence to the place where the trial or inquisition
is held, are to be apportioned rateably to the parties, if more than
one trial or inquisition be held at the same time and place.

Signed by all the Judges, and ordered to be enrolled.

Having thus ascertained what fees are by law allowed to Sheriffs in the execution of civil process, &c., it becomes more easy to comprehend and define the offence of extortion. In a large sense it denotes any oppression under colour of right. But it is usually, as here, applied to that abuse of public justice, which consists in the unlawful taking of money or valuable thing by any officer colore officii from another when none at all is due, or not so much is due, or before it is due-" extortio est crimen quando quis colore officii extorquet quod non est debitum vel quod suprà debitum vel ante tempus quod est debitum. The difference between bribery and extortion seems to be this-the former offence consists in the offering a present, or receiving one when offered; the latter in demanding one colore officii. If an Under-sheriff, therefore, refuse to execute a ca. sa., fi. fa., &c., unless his fees be paid, the Sheriff will be liable in damages for not doing his duty; or after taking the fees (because taken before due) the Under-sheriff may be indicted for extortion. So likewise it is extortion to take a bond for his fee before execution. To admit a prisoner to bail;d to take anything for sparing, not warning, or not returning him to serve as a juryman or otherwise at the assizes, sessions of the peace, or at any other Court; to take money or other reward not to arrest or attach, or for any other omission of duty, is extortion. So if the Sheriff or gaoler detain one in prison, after being duly discharged, except for lawful fee, it is extortion; as if he detain him for meat, drink or the like.

The present remedies are-

1. By indictment.

2. By attachment.

3. By action on the 32 Geo. 2, c. 28, or 28 Eliz. c. 4, as the case may be.

4. By summary application to the Court under 1 Vict. c. 55. The declaration, be it on mesne or final process, proceeds as explained already in actions for escape or false return, differing only in the statement of the breach of duty. A second count for money had and received is generally added.

If it be for the penalty, nil debet may be pleaded, and the

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matters of inducement as well as the wrongful act alleged may be given in evidence under it. In other actions the matters of inducement must be denied, if in dispute.

To prove the wrongful act alleged, inasmuch as the above Evidence. statutes are all public acts, and as the table of fees promulgated by the judges in pursuance of the 1 Vict. c. 55, also has the force of a public act, and therefore to be equally judicially noticed, it would seem unnecessary to give any evidence as to the amount of fees allowed by law. If so, it is enough to show by his return or otherwise how much he was to levy and how much the officer did actually receive.

The plaintiff may recover the penalty, treble damages, or the Damages. sum extorted, as the case may be. Formerly also he had in some cases treble costs, but they are no longer allowed.d

Complaint may be made to the Court upon oath either by the Motion to examination of witnesses vivá voce, or on affidavits, or on interro- the Court. gatories, and the party offending (if the complaint be made in due time, that is, before the last day of the term next following the act whereof complaint is made) will be adjudged guilty of a contempt of Court, and punished accordingly. By one and the same rule the Sheriff may be called upon to refund the excess, and the officer to show cause why he should not be attached for the contempt.e

When the excess complained of was charging for remaining in possession a longer time than was necessary, and for more men than were necessary to keep possession, and the affidavits were contradictory, the Court referred the matter to the master for his report.f

For extortion in the execution of a fi. fa. the proper title of an

affidavit is in the cause.g


FOR NEGLECT AS RETURNING OFFICER AT ELECTIONS. THE 11 & 12 Vict. c. 98, s. 103, enacts, "That if any Sheriff or other returning officer shall wilfully delay, neglect or refuse duly to return any person who ought to be returned to serve in Parliament, for any county, city, borough, district of burghs, port, or place within Great Britain or Ireland, such person may, in case it have been determined by a select Committee appointed in the manner hereinbefore directed that such person was entitled to have been returned, sue the Sheriff or other officer having so wilfully delayed, neglected, or refused duly to make such return at his election, in any of Her Majesty's Courts of Record at Westminster, or

a Ante, p. 72.

b Plevin v. Prince, 10 Ad. & E. 498, overruling Martin v. Slade, 2 N. R. 59; and semble Martin v. Bell, 6 M. & S. 220.

Woodgate v. Knatchbull, 2 T.R. 148.
d 5 & 6 Vict. c. 97.

e Blake v. Newburn, 5 D. & L. 602.
f Ibid.

Masters v. Lowther, 11 C. B. 948.

Dublin, or in the Court of Session in Scotland, and shall recover double the damages he has sustained by reason thereof, together with full costs of suit, provided such action be commenced within one year after the commission of the act on which it is grounded; or within six months after the conclusion of any proceedings in the House of Commons relating to such election." A returning officer may also be sued for refusing to receive a vote.a



Nature of. THESE actions are based upon actual contracts, or contracts in law; the latter are what we have now chiefly to deal with.

Money had

and received.

As soon as the money is received by the Sheriff, e.g. under a fi. fa., he is presently, by act of law, debtor to the plaintiff. In the language of the older books, when the money is levied by the Sheriff, so as the action ceases against the defendant, the same is by law transferred to the Sheriff, having both the judgment to make it a debt, and the levy to make him answerable.b There seems formerly to have been an impression that this contract was not transferred to the Sheriff before the return of the writ, but after solemn argument it was decided otherwise. The usual course is, where the party has not precluded himself, to rule the Sheriff to return the writ; and, upon a return that he has seized and sold and has the money ready, to proceed for the fruits of the execution, by motion to the Court, action of account, by action on the return, or for money had and received. If he suffer goods seized under an execution, and returned by him of such a value, to be rescued out of his hands, a scire facias lies to have execution against him of the money according to the value returned.g


A mere seizure will not charge the Sheriff in an action for money had and received; for, until sale, the execution creditor has no interest in either the goods or money; without which this action will never lie. By sale, or payment of the money, the original debt is extinguished, and the debt is transferred to the Sheriff. So, where he receives payment of or recovers by action the amount of any security for money seized under a fi. fa. and refuses to pay it over, money had and received will lie against

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him. Where he seizes under a fi. fa., and the owner of the goods contends that the possession is illegal, and pays money to avert the evil and inconvenience of a sale, the money so paid may be recovered back in an action for money had and received; if the claim turns out to have been unfounded.b Money paid under a threat to seize and sell would have the same effect. The same principle will equally apply to money extorted by duress, or by a threat of duress of the person. But a voluntary payment of an illegal demand, the party knowing the demand to be illegal, without an immediate and urgent necessity (as to redeem or preserve his person or goods), is not the subject of an action for money had and received. An action for money had and received cannot be maintained by a landlord to recover the amount of a year's rent against the Sheriff who has sold his tenant's goods under an execution. The landlord's remedy is on the stat. of 8 Ann. c. 14, for removing the goods before the year's rent was paid, or by motion to the Court. In order to maintain money had and received, either the money or the goods (the proceeds of which are claimed by the plaintiff) must originally, or at the time of the action brought, have belonged to the plaintiff. Upon this principle it was held, that if the Sheriff, after having seized goods under a fi. fa. at the suit of A., sell them, though irregularly, under another process at the suit of and for the benefit of B., this action cannot be supported by A. against the Sheriff. Again, the Sheriff cannot be fixed with the debt by the laches of the plaintiff. Where the Sheriff in Mich. term returned to a writ of fi. fa. "goods in hand for want of buyers, value unknown," and no further steps were taken until Trin. term following, in the meantime, the goods were seized under an extent by the Crown, it was held, that as the delay was permitted by the plaintiff he could not afterwards fix the Sheriff with the payment of the debt.h

When bankruptcy avoids an execution, the assignees may either By assig affirm or disaffirm the act of any party who, after the act of bank- nees of ruptcy, has converted the trader's effects into money, either by bankrupt. bringing an action for money had and received to their use, or by bringing an action ex delicto. But they must adopt the former if they have affirmed and recognised the wrongful sale and waived the original tort; for, if they have once affirmed his acts and treated him as their agent, they cannot afterwards treat him as a wrongdoer, nor can they affirm his acts in part and avoid them as to the rest. It should be observed, that it is, in general, more advisable for the assignees to proceed for the tort; for if the goods have been sold, they may recover the full value of the

a 1 & 2 Vict. c. 110, s. 12.

b Valpy v. Manley, 1 C. B. 602, confirming Fulham v. Down, 6 Esp. 26; Snowden v. Davis, 1 Taunt. 359.

c Ibid.

d Ibid.

e Ibid.

f Green v. Austin, 3 Camp. 260;

ante, p. 238.

816 East, 254, suprà.

h Ruston v. Hatfield, 3 B. & A. 204; Tomlinson v. Shynn, 2 B. & B. 77: see also 1 Ch. Rep. 613, n.

iRex v. Leith, 2 Term Rep. 143; Clark v. Gilbert, 2 Bing. N. C. 343.

Brewer v. Sparrow, 7 B. & C. 310.

Joinder of claims ex

goods, deducting the ordinary expenses of sale, though the sale may not actually have produced more than half their worth; but in an action ex contractu they can only recover what the party really received. Again, as by bringing an action for money had and received the contract is affirmed, and they have thereby once treated the transaction as a contract of sale, they must pursue it through all its consequences, one of which is, that the party buying may set off another debt owing to him, which cannot be done in tort. Therefore, to avoid a plea of set off or mutual credit, as the case may be, the form ex delicto seems, in general, preferable when it can be maintained. When the ground of action, however, is contract, declaring in tort will not render a person liable who would not have been so on his contract.d Where the Sheriff sold goods under a fi. fa. without notice of a prior act of bankruptcy by the defendant, and paid over the proceeds of the sale to the plaintiff, upon an indemnity, it was held that the defendant's assignees might sue the Sheriff for money had and received.R

By the Common Law Procedure Act 1852, actions ex contractu delicto and and ex delicto may be joined. But the pleader will act not unwisely until the Act be fairly worked out, in keeping as near as may be to the old rules.

ex con


Remedy for excess of fees paid.

Demand be

when to be made.

When a Sheriff claimed, as of right, upon a warrant issued by him in the execution of his office, a larger fee than he was entitled to by law, and the attorney paid it, it was held that the latter might maintain money had and received for the excess so paid, or might set off the sum in an action by the Sheriff against him.f So when a Sheriff claims by his return to retain money to which he is not entitled, money had and received will lie.g

The action of debt against the. Sheriff for an escape was abolished by 5 & 6 Vict. c. 98.

Although a demand before action brought is not absolutely fore action, necessary to the maintenance of the action, yet a demand should be made, otherwise the Court will stay proceedings on payment of the sum levied without costs.h If, however, upon sale, money remain in his hands, beyond the debt, the defendant, it seems, must demand it of the Sheriff before action brought.i


The plea of never was indebted operates as a denial both of the receipt of the money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. All matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be

a Rex v. Leith, suprà.

b Fair v. M'Iver, 16 East, 130.
See Wilkins v. Carmichael, Dougl.
101; Birdwood v. Raphael, 5 Price,

d 1 Ch. Pl. 100; and cases cited,
ibid. n. (t), 6th edit.

e Young v. Marshall, 8 Bing. 43; before 2 & 3 Vict. c. 29.

f Dew v. Parsons, 2 B. & A. 562; Morgan v. Palmer, 2 B. & C. 729.

Longdill v. Jones, 1 Stark. 345. h Jefferies v. Sheppard, 3 B. & A. 696; Dale v. Birch, 3 Camp. 347. i Wooddye v. Coles, Noy, 59.

k Reg. Gen. (Plead). Hil. Term. 1853, r. 6.

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