delivered the opinion of the Court:
The defendant, being a constable of Clinton county, was not required by law to go out of his county and execute the warrant in Marion county, where the person against whom the Avarrant issued resided. If he was specially employed by Krug to do so, under an agreement that the latter would pay his expenses, and pay him well for his time, and in pursuance of such agreement, they mutually fixed upon what was a proper compensation, and Krug voluntarily paid the same, we do not think that such transaction, merely, would make a case of liability for the fine imposed by the statute for the charging or taking of illegal fees, although the sum should exceed the lawful fees for the like services in a case where an officer was required by laAV to act. But if appellee made return of his charges as official fees, and by virtue thereof coerced their payment, it might be otherwise.
And the question is, which state of case did the proof make out. Appellee’s return and the docket entry of the magistrate, would seem to show the latter. But the other evidence introduced changes the. apparent character of the return on the warrant and the docket entries. The evidence shows that the warrant was not handed by the justice of the peace to appellee to execute; and the latter testifies that on the same day he made the return, after the trial, he receipted on the docket his fees as paid, in order that there should be no judgment against Krug for appellee’s charges, and that he never received anything from the justice of the peace. Although Krug testifies the justice afterward gave him a receipt for these costs, he does not testify that he paid them to the justice.
As the State’s attorney had informed the justice of the peace that he had no right to render a judgment for these costs against Krug, it is not improbable, considering appellee’s testimony upon the subject, that the justice may have given the receipt to stand against what he may have thought the wrongful judgment he had entered, without any actual receipt of payment.
There was at least evidence tending to prove a case of an agreed compensation, under a special employment, for services which it was not the official duty of appellee to perform; and that there was no coercion, or really attempted coercion, of payment by virtue of a charge for them as official fees.
We can not say that the finding for the defendant is so manifestly contrary to the evidence as to require that in a case of this character the verdict should be set aside.
The jury seem to have been instructed by the court upon both aspects of the case, as above presented, and we find no sufficient cause of complaint, as regards instructions.
The judgment will be affirmed.
Judgment affirmed.