The opinion of the Court was afterward drawn up by
Parker C. J.This is the case of an honest and meritorious public officer, who by misapprehension of his rights has demanded and received a lawful fee for a service not yet performed, but which almost necessarily must be performed at some future time.1 If we had authority to interpose and relieve from the penalty, we certainly should be inclined to do so, but we are only to administer the law. There is certainly no right in a prison-keeper to demand a fee for letting a man out of prison the moment he is put in, and it is extortion at the common law to receive, by color of office, a fee before it is due, though no more is taken than will in all probability soon become due. And the common law is not repealed by the statute which prescribes and limits the penalty. Merrill acting merely as the agent of Morse, it was rightly said in the indictment, that the extortion was from Morse.
Judgment according to verdict.
Proof that a justice has taken illegal fees by mistake, and misconception of the fee bill, is sufficient to make him liable. Wallace v. Coates, 1 Ashmead, 110. See 2 Chit Crim. Law, (4th Am. ed.) 293, note A.