The Court doubted whether the sum of 30 cents, which was taxed for levying, was authorized by the statute; but it being agreed by the counsel on both sides that the usage in this county had been uniform in taxing that sum in the fees of officers who collected executions, the Court said that, as it respected that part of the sum received by the defendant, the fact would not evince a corrupt intention, and therefore would not bring his case within the statute, though whether he could, on that ground, justify in a civil action taking that sum was another question. And Sewall, J., who charged the jury, stated that, if they believed the 48 cents excess was taken for extra trouble and expense, they must acquit the defendant, as the sum of 15 dollars and 56 cents was no more than the legal and customary fees; that if they doubted as to that, yet if they believed it was taken from a mistake in computation, or that the defendant thought he had a right to take it, although he had not a strict legal right, they must also acquit; that, possibly, in a civil action, he might be compelled in such case to refund, but the smallness of the sum which was taken beyond the legal fees, rendered it extremely improbable that there should have existed a corrupt intention; of that, however, the jury were the judges; but unless the excess were wilfully and corruptly demanded and received, it was not within the statute.
The jury, without leaving their seats, acquitted the defendant. (a)
[Custom cannot control the positive law, which every officer is bound to know. — Ed.]