appear, and if none such appear in six months from the time СH. 204. of the arrest, the prisoner may be discharged. Costs to be Art. 10. paid by the State demanding &c. ner, and the 11. In this case a person stole a horse in Vermont and 2 Johns. R. fled into New York, where he was apprehended with the 477, the Peohorse in his possession. Held, he could not be tried for this ple v. Gardfelony in the State of New York, but was to be viewed as a People v. fugitive from justice, within the above law. Like decision, Schench-2 2 Johns. R. 479. Contra 2 Mass. R. 14, Andrews' case. 774. See Ch. 214, a. 2, s. 7. § 12. Sundry indictments for rescues of persons and of goods, Crown Cir. Com. 661 to 668, at common law. § 13. Rescue, as the subject of a civil action, was considered Ch. 65, and there defined &c. 14. If the person rescued be indicted or attainted for Hale's P. C. several felonies, his escape or rescue is but one felony. 599. 15. Where the imprisonment is so far groundless or ir- 2 Haw. P. C. regular, or the breaking of the prison is of such necessity &c. 139. that the party himself breaking it is by common law, or by the statute de frangentibus prisonam, saved from the penalty of a capital offender, a stranger who rescues him from such imprisonment is excused. 16. The defts. were returned rescuers, on mesne process, 1 Stra. 642, and submitted to a fine. The court said, they must take the Rex v. Mireturn to be true; but allowed the defts. to mitigate the fine nify & al. to 1s. each, by shewing, in fact, there was no actual arrest, it being in the night. The court said, anciently there was a settled fine for rescuers, but lately they had been fined at the court's discretion, on considering all the circumstances of the case. Sect. 8, of this act, punishes rescuers &c. from the State prison, or other prisons &c. § 17. Obstructing process is a similar offence, and against public justice, and is a high misdemeanor, especially in criminal cases, as in preventing arrests, commitments, &c. and the offender becomes particeps criminis; that is, accessary in felony, and principal in treason and trespass. Mass. Act, June 21, 1811. 18, 1793. 18. By sect. 31 of this act, as to ships &c. it is enacted, Act of Conif any person assault, resist, obstruct, or hinder any officer in gress, Feb. the execution of this act, or "of any other act or law of the United States, herein mentioned, or of any of the powers or authorities vested in him by this act, or any other act or law as aforesaid," he forfeits $500 &c. 19. A person was indicted for insulting and obstructing a 1 Wils. 222, justice in the execution of his office. The justice died pend- The King v. ing the indictment. The court refused to discharge the in- Stra. 1226. dictment. Ellers.-2 Сн. 204. 2 Leach, 794. 141.-Indict 4 Wentw. 146, 148. ART. 11. Extortion is another offence against public justice, and is indictable at common law. § 1. It is where an officer, by colour of his office, unlawfully takes from any man money or any thing valuable, not due to the officer, or more than is due to him, or before it is due; the punishment is ments &c. for, fine and imprisonment. The indictment for it states the commitment when by a gaoler &c., and the offence for which committed; that the prisoner is detained &c: yet the gaoler, not regarding &c. did, at —on demand and receive Co. Ent. 383. £ of and from the said A. B. for care and favour in the said gaol, for the said time, in contempt of the Commonwealth, and against the peace &c. See the case of Justice Johonnot, in a former chapter, in which an indictment, containing one count at common law, and the other on our statute, was deemed bad, but amended by entering after conviction a nolle prosequi on one count. Cro. C. C. 353, 360. -Herne, Act, 415-1 68. s. 1.Form of a q. t. suit on, 26 H. VI, Bohun, 383. Act of Con gress, May 8, 1792. Act of Congress, Dec. 31, 1792, as to ships. Act of Cong. as to ships. 11 Mod. 80, 137-Salk. 330, 332. Co. L. 368. -4 Com. D. 101. 2. Sect. 7 of this act provides, that if any marshal or his deputy," shall by reason or colour of his office, wilfully and corruptly demand and receive any greater fees than those allowed by this act," he forfeits a fine not exceeding $500, or may be imprisoned not exceeding six months. § 3. Sect. 26 of this act provides, that if any collector or officer "shall designedly take any other or greater fees than are by this act allowed, or who shall receive any voluntary reward or gratuity, for any services performed, pursuant" to this act, forfeits for each offence $1000, and is rendered incapable of serving in any office of trust or profit under the United States. 4. And by the 29th sect. of this act, there is made a similar provision as to extortion &c. 5. Indictment against a clerk for illegal fees in his office. But it is no extortion for an officer to take fees for serving an erroneons writ. § 6. "Every oppression by colour of justice or right is ex-2 Rol. 263. tortion," and is a great misprision at common law, and for it 149.-1 Salk, an indictment or information lies. And it is extortion if an 330-10 Co. officer refuse to execute process till his fee is paid, or takes a 102.-4 Mod. bond for it before execution sued. So if a ferryman take more for a ferry than is due by prescription. But an indict4 Burr. 2471. ment or information for extortion, contra formam statuti, -2 Inst. 210. where the offence is at common law, must be quashed. But Co L. 368. if a statute allows a fee to any officer, it will be extortion to 150, 151.- take above that which the statute allows, and then the indictFrench Penal ment may be against the form &c. So if he takes more than 174.-Indict the legal fee in any other case. But it is no extortion for ment, Ras. an officer to take a fee allowed by law, or reasonable fees Ent. 333.-2 allowed by ancient usage. And an officer may prescribe to take a fee for a thing, which is not an act within his office -6 Com D Code, art. Inst. 210. as twenty pence for a bar fee of every prisoner acquitted; for this is not given for doing his office. CH. 204. 151.-1 Stra. Cro. El. 654. 103.-1 Haw. 171. 7. An indictment against several for extortion, colore officiorum, is good; for they might take so much, and after- 4 Com. D. wards divide it. And an indictment or information for ex- 73.-3 Leo. tortion, where nothing is due, ought to state nothing is due; 268.-2 Bac. and if for taking more than was due, it ought to state how Abr. 453.much more. If an officer take a reward, voluntarily given -Moore, 468. him, and which has been usual in such cases, for the more Cro. Jam. diligent or expeditious performance of his duty, he is not guilty of extortion; " for without such a premium, it would be impossible in many cases to have the laws executed with vigour and success. But clearly, a promise to pay an officer money for doing a thing, which the law will not suffer him to take any thing for, is merely void, however freely made. Several forms of an indictment for extortion, Crown Cir. Com. 253 to 360. No accessaries in extortion. 2 Lord Raym. 1268. § 8. It has ever been the practice in Massachusetts to fix Mass. Fee the amount of officers' fees, in almost every case, by fee bills, 13, 1796 &c. Bills, Feb. enacted from time to time; and in each fee bill there has been a clause providing, " that if any person shall, wilfully and Not extorcorruptly demand and receive any greater fee or fees for any of tion to take the services" enumerated, than are allowed by the statute, he ble in a prior shall forfeit and pay a sum named for every offence, to be case, 15 recovered by indictment &c., sometimes by action of debt; Mass. R. 525. time of prosecution usually limited to one year. See Fees for some constructions of such acts. fees for trou 5 Mod. 13, Indictment against a miller for taking too much toll. ART. 12. 1. Forcible entry is also an offence punishable Rex r. Wardsby statute and at common law,-is properly an offence against worth. the peace. It is committed by violently taking possession of 4 Bl. Com. lands and tenements, with menaces, force and arms, and with- 147, 148out the authority of law. And by statute it may be where &c. for. 4 there is a right of entry, for the law now allows only a peace- 151.-Cro. able entry. The essence of this offence is seen in the form C. C. 361 to of the indictment for it at common law. on a Indictments Went. 148 to 372. Rex r. Wil The ancient II.; 15 R. II. ; 2. As stating the defts. (twelve of them) at with force and arms, unlawfully, and injuriously, and with son & al. strong hand entered into a certain mill &c. being in the pos- English statsession of M. Lewes, and him from the possession thereof, utes on this unlawfully and injuriously, and with a strong hand expelled subject. 5. R. and put out, and unlawfully and injuriously kept him out, 8 H. VI.; and still keep him out against the peace &c. On demurrer and the 31 adjudged good, though objected this indictment charged only of a private trespass, and not a public breach of the peace indict- 4 Johns. R. able. Curia, 66 a mere trespass which is the subject of a civil 200, to be action, and where the words, vi et armis are introduced as a ed in succes of Eliz. said literally copi sion into the New York statute. CH. 204. mere matter of form, cannot be converted into an indictable Art. 12. offence. But there is no doubt but that the offence of forcible 3 Burr. 1732, 1733.-2 Bac. Abr. 558. 4 Com. D. Co L. 257.- Indict ments for forcible entry, 6 Went. 403, 404, 428 to 430. 4 Com. D. 201, &c. entry is indictable at common law, though the statute gives other remedies to the party grieved, restitution and damages." The facts in this indictment being proved as laid "amount to an indictable offence." Here twelve men entered, unlawfully, with a strong hand, and with a strong hand and unlawfully expelled the possessor. This "is clearly a breach of the peace." The words, said Grose J. with a strong hand, mean something more than a common trespass. And Lawrence J. added, these words also are sufficient in an indictment on the statute, (cited Cro. Jam. 41) they import something criminal in its nature. Lord Kenyon added, it appears the defts. entered "unlawfully, and therefore it cannot be intended that they had any title." This was said by way of reply to what is said by Hawkins, to wit, "that at common law the party may enter with force into that to which he has a legal title." Threatening to spoil A's goods if he do not quit possession, is not a forcible entry. 3. But such an indictment at common law must contain on the face of it sufficient actual force, violence, unlawful assembly, riot, or other circumstances (as breaking into a dwelling-house &c.) otherwise it may be quashed on motion. It is not force to draw a latch and enter a house. § 4. Second. To enter into a church with force and violence is a forcible entry, and it may be by one alone, and an infant or feme covert; and if one alone having no right of entry uses force, all in company are guilty. So by breaking a door and entering, though no one be in the house. So though no actual ejection of the owner; so if the entry be by force to distrain for rent &c. So if accompanied with weapons &c. to excite terror among the people, though no force be used. But not if no actual entry, nor any forcibly made, as if he opens the door with a key or enters an open window. So if he in a peaceable manner entice the owner out of possession; though he afterwards open the door being only latched and enters, or afterwards excludes the owner by shutting the door, without other force; or if he imprisons the owner and then sends his servants and takes possession; though this is false imprisonment (if wrongful) but no forcible entry. Nor if after entry he cuts corn &c.; nor if no intent to do wrong, as going over land with force, or a great company, to a church or market. Nor if one enter a house to arrest a felon, nor an officer by force enter to do execution, or by warrant of law. 5. Third. Forcible detainer &c. is where one enters Hawk. P. C. peaceably and then detains by force, as if he threatens a corporeal damage to one who attempts to enter, or repels him Bac. Abr. 559. with violence; or keeps the door shut when the justices de 139, 146. Cro. J. 199.-2 mand entrance; if he brings more arms or persons than usual CH. 204. in his family; or if the lessee at the end of his term keeps Art. 12. arms &c. to oppose the lessor's entry, though no one attempt to enter, and so if lessee at will. So if lessee with force resist a distress for rent; but not if lessee at will denies an entry to his lessor when he demands it, or merely shuts the door against him when he would enter; nor if one keep out a commoner by force of his own land. Cro. Car. 486. But by 8 H. VI. c. 9, any one in possession three years by himself or tenants may detain by force; and so have been Massachusetts statutes on this subject. One joint-tenant may be guilty of this offence as to the other. 203. 6. Fourth. The indictment must be certain as to the 4 Com. D. description of the estate entered upon or detained; hence, in unum tenementum, is bad; must shew what estate generally the party has, as in fee, or for life or years, at the time of the offence committed. Disseizin or expulsion must be positively laid, not by recital. Mass. Act, June 30, § 8. Sixth. American cases. There is no statute of the United States on this subject. This act was stated in chap- 1784.— ter 132, where our Massachusetts statutes on this subject were Maine Acts, noticed in treating of estates by entry and possession, and con- ch. 79. sidered as statute law, and in relation to entry and restitution by two justices, quorum unus, proceedings removed by certio rari &c. ch 63, and 9. But as the proceedings on this act are attended with Act of Virmuch trouble and expense, and the common law sufficiently ginia of 1789. punishes the forcible entry or forcible detainer; recourse has been rarely had to this act or will be probably, unless where immediate restitution is sought for. But the indictment at common law will be resorted to for punishing the injury on the part of the public. § 10. In many of the States there are, and long have been, special statutes on this subject, but different in several respects; some have only made provision for immediate restitution of possession, others also, for a statute indictment for the offence. The indictment must state a seizin in the prosecutor at the time of the entry, and describe the deft's. entry: 2 Where the proceedings are reversed the court may order restitution. 1 Caines' R. 125, The People v. Shaw. As to costs, Id. ; 2 Caines' R. 98. 11. Seventh. In Pennsylvania indictments for the offence 4 Dallas, 212. have been supported; and as to them it has been held: 1. That stating the person entered upon was disseized, necessa rily implied his previous seizin. Commonwealth v. Fitch. 12. 2d. That in an indictment for a forcible entry and 1 Dallas, 68. detainer, title to prevent restitution cannot be given in evi-2 Salk. 587. dence, but restitution lies only against parties to the record. |