execution remains to be done for the sum of three hundred and seven dollars and seventy cents, said officer as often before commanded, is therefore by virtue of said writ of execution, by the authority of the State of Vermont, commanded to cause to be levied of the goods, chattels or estate of the said W. P. H. and C. H., said sum of three hundred and seven dollars and seventy cents, with twenty-five cents more for said writ of execution and fifty cents for two others, and for want of the goods and chattels of said W. P. and C., shown or to be found by said officer within his precinct, commanding him to take the bodies of said W. P. H. and C. H., and them commit to the keeper of the common gaol of Middlebury, in said county, within said prison, which said writ of execution so duly issued as aforesaid, in full life, and in no way satisfied, paid or discharged, was on, &c., delivered to said A. S., sheriff as aforesaid, to serve and return, and afterwards, to wit, on, &c., at Middlebury aforesaid, the said A. S. then being sheriff as aforesaid, for want of the goods, chattels or lands of the said W. P. and C., shown him or to be found within his precinct whereon to levy said writ of execution, attempted to serve and execute said writ of execution as he was therein commanded, by arresting the body of said W. P. H.; and the said W. P. H. then and there unlawfully and wickedly intending to impede and hinder the said A. S. in the execution of his said office, and well knowing that said A. S. was sheriff of the County of Addison as aforesaid, and that said A. S. then and there had said writ of execution so duly issued and in full force as aforesaid to serve and execute, and was then and there attempting to serve and execute said writ of execution, did with force and arms then and there impede and hinder the said A. S., sheriff as aforesaid, in attempting to serve and execute said writ of execution, in the execution of his said office, by beating and bruising the said A. S. with a large and heavy bludgeon on his head, shoulders and arms, to the great damage of the said A. S., to the great hinderance and obstruction of justice, and contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(891) Assault on police officer of the City of Boston.(1)

That, &c., on, &c., at, &c., with force and arms, in and upon one G. L. an assault did make, said L. then and there being a police officer of the City of Boston, and then and there being in the lawful discharge of his duty as such police officer, and him then and there did beat, wound, bruise and eviltreat, and did then and there obstruct, hinder and oppose said G. L. in discharge of his duty as said police officer, and which he the said G. L. was then and there attempting lawfully to perform, against, &c. (Conclude as in book 1, chap. 3.)

(892) Assaulting a person specially deputized by a justice of the peace to serve a warrant. (m)

in the County of

That S. F., of yeoman, on, &c., with force and arms at, &c., in and upon the body of one P. W. did make an assault,

(1) Com. v. Hastings, 9 Metc. 259.

(m) In this form there is no averment that the prosecutor was an officer, and in the case for which it was drawn, the fact was that he was not. It appeared that he was specially deputized by a justice to arrest the defendant for breach of the peace. There was nothing introduced in the evidence to show that the deputation was made through necessity, or that no regularly constituted officer was at the time accessible; and the court held that under such circumstances there being no valid appointment, the warrant was no protection to the prosecutor. Whether or not such deputation would have been good if it had appeared that there was no officer at hand to have served the warrant, was doubted; Com. v. Foster, 1 Mass. 489. Wherever the prosecutor is a regular constable, it is better specially to aver the fact; though if the official aggravation be

he the said P. W. being then and there duly and lawfully appointed to serve and execute a certain warrant, legally issued against the said S. F., and the said P. W. being then and there in the due and lawful execution of the said warrant, and that he the said S. F., him the said P. W. did then and there beat, abuse and ill-treat; and in the due and lawful exercise of his said office, did then and there unlawfully and knowingly obstruct, hinder and oppose, and other wrongs then and there did and committed; to the great damage of the said P. W., and against, &c. (Conclude as in book 1, chap. 3.)

(893) Assaulting peace or revenue officers in the execution of their duties. (n)

That A. B., &c., on, &c., at, &c., in and upon one J. N., then and there being a peace officer, to wit, a constable (any peace officer or revenue officer, or any person acting in aid of such officer), and then and there being in the due execution of his duty as such constable, did make an assault, and him the said J. N. so being in the execution of his duty as aforesaid, then and there did beat, wound and ill-treat, and other wrongs to the said J. N. then and there did; to the great damage of the said J. N., against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(Add a count for a common assault.)

(894) Resisting an officer of the customs in the discharge of his duty.(0)

That S. L., &c., on, &c., at, &c., did forcibly resist, prevent and impede a certain J. J. R. in the execution of his duty as an officer of the customs for the district aforesaid; he the said J. J. R. being then and there an inspector of said district, and as such duly appointed and authorized to seize all goods, wares and merchandise imported into said district contrary to law. And the said J. J. R. being then and there in the peace of the United States, and having then and there in the due execution of his office as aforesaid the charge and possession of certain goods, wares and merchandise on board of a certain vessel, to wit, the brig Star, as having been imported into the United States and into the district aforesaid contrary to law; he the said S. L. did then and there forcibly take and carry away from said vessel and from the possession and custody of the said J. J. R., the said goods, wares and merchandise, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

That the said S. L. afterwards, to wit, on, &c., did forcibly resist, prevent and impede a certain J. J. R., an officer of the customs for the District of Philadelphia, in the United States of America, he the said J. J. R. being then and there an inspector of said district, and as such duly appointed and authorized to take charge and possession of all goods, wares and merchandise imported into said district, in the execution of his duty as an inspector as aforesaid, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.) badly pleaded, the whole of it may be rejected as surplusage, and a verdict sustained on the mere assault. A sheriff's deputy, however, will be protected in the execution of his office, whether he be formally appointed by writing or not; Com. v. Field, 13 Mass.321.

(n) Archbold's C. P. 5th Am. ed. 545.

any assault

This is under the English statute, which affixes a specific penalty on upon any revenue or peace officer in the due execution of his duty, or upon any person acting in aid of such officer."

(0) Under this indictment the defendant was convicted in Philadelphia, in 1842. 627

CHAPTER V.

COMPOUNDING FELONY.

(895) At common law for compounding a felony.
(896) Compounding misdemeanor. (Stat. 18 Eliz.) First count.

(895) At common law for compounding a felony. (a)

THAT one A. B., late of, &c., on, &c., with force and arms at, &c., one silver spoon of the value of five shillings of the goods and chattels of one C. D. then and there being found, feloniously did steal, take and carry away, against, &c. (Conclude as in book 1, chap. 3.)

And that the said C. D., late of, &c., well knowing the premises, but unlawfully and unjustly contriving and intending to prevent the due course of law in this behalf, and to procure the said A. B. to escape with impunity, afterwards, to wit, on, &c., at, &c., unlawfully and unjustly, and for the sake of wicked lucre, did compound the said felony with the said A. B., and did then and there exact, receive and have of the said A. B., five pounds in moneys numbered for and as a reward for compounding for the said felony, and for desisting from all prosecution of the said A. B. for the felony aforesaid, and that the said C. D. on, &c., at, &c., did thereupon desist, and from that time hitherto, hath desisted from all prosecution of the said A. B. for the felony aforesaid, to the great hinderance of public justice, and against, &c. (b) (Conclude as in book 1, chap. 3.)

(896) Compounding misdemeanor. (Stat. 18 Eliz.) First count.(c)

That the defendant disregarding the statute (18 Eliz. c. 5, s. 4), upon color and pretence that one W. P. had committed a certain offence against

(a) Dickinson's Q. S. 6th ed. 346.

(Offence at common law.) The agreeing to receive money in consideration of compounding a charge of felony is a high misdemeanor, subjecting the party who commits it to imprisonment and fine; 1 Hale 546, 619; 2 Hale 400. See Wh. C. L. § 2505, &c. Formerly it was thought to constitute the offender an accessory to the original crime; but this construction has not prevailed in modern times; 4 Bla. Com. 134. The offence is consummated by a person receiving a note from a party charged with larceny as a consideration for not prosecuting the suit; Com. v. Pease, 16 Mass. 91. It is also a misdemeanor to receive money for compounding a prosecution for misdemeanor, or a criminal information, without leave of the court in which the proceeding is depending; Collins v. Blantern, 2 Wils. 341, 349; Edgecomb v. Ross, 5 East 298, 302; but that permission is sometimes granted in cases of personal injury; see remarks of Gibson C. J. in Brittain v. Doylestown Bank, 5 W. & S. 99. The compounding penal actions without leave of the court, was made punishable by the statute 18 Eliz. c. 5, ss. 3 and 4, see R. v. Stone, 4 C. & P. 379; R. v. Crisp, 1 B. & Al. 282; R. v. Gotley, R. & R. 84; Reg. v. Best, 9 C. & P. 368, with the forfeiture of £10, half to the party grieved and half to the crown, with exposure in the pillory (now abolished). But 18 Eliz. c. 5, does not apply to informations for offences cognizable only before magistrates; and, therefore, an indictment for compounding such an offence was holden bad in arrest of judgment; R. v. Crisp, 1 B. & Al. 282. See generally as to compromise of misdemeanors, 6 Pa. L. J. 359.

(b) See 4 Went. 327.

(c) R. v. Best, 9 C. & P. 368.

The second count was like the first, except that it stated the selling of the spirits to

a certain penal law, in this, that the said W. P. had, before that time, sold by retail and delivered a quantity, less than two gallons, of certain spirits and distilled spirituous liquors, to wit, one quartern of gin to one E. H., without being duly licensed, against the form of the statute, &c., unlawfully and for wicked gain's sake, and without the order and consent of the queen's courts at Westminster, did make composition with the said W. P., and take from him three sovereigns, three half-sovereigns, and ten shillings, twelve pennies, and twenty-four half-pennies, as a reward for forbearing to prosecute for the said supposed offence against the statute, and against, &c. (Conclude as in book 1, chap. 3.)

be in a certain house in the occupation of William Peverill, he not having a retailing license.

In this case A. threatened B. that he would inform against him for selling spirits without a license, unless B. would give him a sum of money. B. had not in fact sold any spirits, but he gave A. the money to prevent an information; and it was held that A. was indictable under the stat. 18 Eliz. c. 5, s. 4, although B. had not committed any offence, and although no information was ever preferred nor any process sued out.

By stat. 18 Eliz. c. 5, s. 4, it is enacted "that if any person or persons (except the clerks of the court only for making out process otherwise than is above appointed), shall offend in suing out of process, making of composition, or other misdemeanor contrary to the true intent and meaning of this statute, or shall by color or pretence of process, or without process upon color or pretence of any matter of offence against any penal law, make any composition, or take any money, reward or promise of reward, for himself, or to the use of any other, without order or consent of some of her majesty's courts at Westminster, that then he or they so offending being thereof lawfully convicted, shall stand on the pillory, be disabled to sue in any action popular or penal, and forfeit £10; and justices of oyer and terminer, justices of assize on their circuits and the quarter sessions, are empowered to hear and determine offences against this act."

By the stat. 56 Geo. III. c. 138, the punishment of the pillory was abolished as to this offence, and fine and imprisonment substituted for it.

Two other cases appear under this statute in the English books. In one, R. v. Southerton, 6 East 126, it was held that a threatening to put in motion a prosecution for penalties for the purpose of obtaining money to stay the prosecution, is not an indictable offence at common law, although it be alleged that the money was obtained; but Ld. Ellenborough intimates an opinion that the charge might have been supported if the indictment had been framed on the stat. Eliz. c. 5.

In the other, R. v. Gotley, R. & R. C. C. 84, the prisoner was convicted of having compounded an offence against the highway act. Some of the counts stated, that the party from whom the money was taken, had committed the offence; and the other stated, that the prisoner compounded, and took money by and upon color and pretence of a certain matter of offence pretended to have been committed. It was proved, that the person from whom the prisoner took the money, had incurred a penalty of five pounds under the highway act, and that the prisoner had received money from him to compound it, but that no process had been sued out, and no information laid before any magistrate. Le Blanc J. respited the judgment, upon a doubt whether the offence was within the stat. Eliz. c. 5, inasmuch as no action or proceeding was depending, in which the order or consent of any court in Westminster Hall for a composition could be obtained; but the judges held the conviction right; and that the statute 18 Eliz. c. 5, applies to all cases of taking a penalty incurred or pretended to be incurred, without leave of a court at Westminster, or judgment or conviction.

629

CHAPTER VI.

MISCONDUCT IN OFFICE; INCLUDING EXTORTION, NEGLECT OF DUTY, ESCAPE, AND CRUELTY TO SEAMEN, CHILDREN AND PAUPERS.

(897) Against a magistrate, for committing in a case where he had no jurisdiction.

(898) Against a magistrate for neglect of duty at a riot.

First count, for neglecting to read the riot act.

(899) Against a justice of the peace, for proceeding to the duties of his office in a state of intoxication.

(900) Against a justice of the peace, for issuing a warrant without oath, using falsely the name of a third party as prosecutor.

(901) Against a justice of the peace in Pennsylvania, for refusal to deliver
transcript to party demanding it.

(902) Against a justice of the peace in Massachusetts, for extortion generally.
(903) Against a justice of the peace for extorting fees for discharging a recog-
nizance, and for not returning the same to the court for which it was
taken.

(904) Against a constable for extorting money of a person apprehended by him
upon a warrant, to let him go at large.

(905) Against a constable for neglecting to execute a warrant in a civil case.
(906) Against a constable for neglecting to execute a justice's warrant for the

apprehension of a person.

(907) Against a constable for extorting and obtaining money under color of discharging a bench warrant.

(908) Against constables for neglecting to attend the sessions.

(909) Against a high constable for not obeying an order of sessions.

TOLL COLLECTORS.

(910) Against a toll collector for extorting toll from a person who had compounded.

INNKEEPERS.

(911) Against an innkeeper for not receiving a guest, he having room in his inn at the time.

(912) Against an innkeeper refusing to entertain foot travellers.

ATTORNEY.

(913) Against an attorney for buying a note, on New York stat., sess. 41, c. 259, &c.

MASTER FOR MISCONDUCT OF SERVANT.

(914) Against a master for neglecting to provide an apprentice of tender years
with sufficient food, clothing, bedding, and other necessaries.
(915) Against a mistress, for not providing sufficient food for a servant, keep-
ing her without proper warmth, &c.

OVERSEERS FOR CRUELTY.

(916) Against overseers for cruelty to a pauper.

JUROR FOR NON-SERVING.

(917) Against a juror for not appearing when summoned on a coroner's inquest.

REFUSING TO SERVE IN OFFICES.

(918) For refusing to serve the office of overseer of the poor.

(919) For refusing to execute the office of constable.

(920) For refusing to take the office of chief constable, being duly elected at the quarter sessions.

JAILER, &C., FOR ESCAPE.

(921) Against a jailer for a voluntary escape.

(922) Same where the party escaping was committed by a judge as a fugitive

from justice.

(923) Against a constable for a negligent escape.