III. Proceed- dens, buildings, and outhouses thereunto belonging, and to seize and carry away all ings, &c. such (a) large quantity of British spirits, and all other goods and commodities so for feited as aforesaid, that he shall there find deposited and concealed. And all constables and other his Majesty's officers, are hereby authorized and required to be aiding and assisting to him in the execution hereof: and for so doing this shall be to him and every of them a sufficient warrant. Given under my hand this [fifth] day of [April], in the year of our Lord [1828]. Memorial or petition, stating that defendants are wholesale grocers, and wholly innocent of the offence, and shewing that it is their practice to let their servants have their goods at wholesale prices, and that one of them, without their knowledge, took some of their liquorice, and sold it to G. H., and made use of one of their tickets. To the Honourable the Commissioners of the Revenue of Excise. The humble Memorial of A. B., C. D., and E. F., of &c., wholesale grocers and tea dealers. Sheweth, That your memorialists have, for upwards of sixteen years last past, carried on business as wholesale grocers and tea dealers, in lane aforesaid, in an extensive way and with uniform credit and reputation, and have never been knowingly guilty of any violation of the revenue, or of any other laws, in the course of carrying on their said business. That notwithstanding the inviolate good conduct of your memorialists in this respect, they were lately, to their great surprise, served with process issuing out of the Court of Exchequer, requiring them to appear to an information to be filed against them in that Court by his Majesty's Attorney-General. 66 That your memorialists caused an appearance to be entered for them accordingly, and they have taken an office copy of such information, by which it appears that your memorialists are charged in ten several counts, with having “ in the year 1815, sold and delivered to one G. H., therein stated to be a licensed brewer of beer, (your memorialists being charged in the said information with knowing him to be so licensed), a quantity of liquorice, contrary to law," for which a penalty or penalties is or are sought to be recovered. And your memorialists are further charged in the said information with having sold and delivered to the said John Mitchell, knowing him to be so licensed, a quantity of molasses, contrary to law, for which further penalties are sought to be recovered. That your memorialists never knowingly engaged, either directly or indirectly, in any illegal, illicit, or prohibited course of trade, and particularly your memorialists positively state, that they are wholly innocent of all and every the supposed offences, in and by the said information imputed to them. That your memorialists have always been in the habit of allowing their clerks, warehousemen, and other trade servants, to have and be supplied with the articles in which your memorialists trade and deal, whenever they wished to have the same for the use of themselves and their families, or their immediate friends, at the wholesale price, which practice your memorialists believe to be common to the greater part of wholesale houses in the grocery and tea business, it being generally considered, that where the articles are wanted for the immediate use and consumption of the servant, or of his family, such a privilege is but a reasonable indulgence; and even where they are intended to be resold by the servant to his personal friends, that it tends to promote habits of gainful industry, and tends to the establishment of connexions which eventually enable the individual to engage in retail business, which ultimately conduces to the advantage of the wholesale dealers, his former masters. That, on being served with the process issued in virtue of this information, your memorialists, knowing that they had never had any such dealings as those imputed to them by this prosecution, made inquiry among the persons who were in their service and employ during the said year, 1815, for the purpose of ascertaining whether any of them had been engaged in such dealings, and had committed the offences in and by the said information mistakenly imputed to your memorialists. That such inquiry informed your memorialists, that J. K., who, in the year 1815, lived with your memorialists in the character of salesman, had been the perpetrator of the offences mentioned or referred to in the said information, and that he had, in the course of the year 1815, sold 14lbs. of juice, or liquorice, and one half puncheon of molasses to the said G. H. But, for the complete justification of your memorialists, and the entire satisfaction of your Honors, your memorialists crave leave to state the particulars of the information which they then received respecting those transactions, &c. That the above mentioned two articles of juice and molasses are the only articles of that description which the said J. K. bought of your memorialists during the period of time mentioned in the said information. That your memorialists now find, to their great surprise, that the said J. K. was in the habit of occasionally using the printed invoices of your memorialists' warehouse, (a) Insert the articles suspected to be deposited. for making out the bills of parcels of goods really belonging to and sold by himself. But your memorialists positively state, that he had no authority whatever from them for doing this, and they were not aware of the practice at the time, it being a violation of the established regulation of their house, and permission for which they have constantly and uniformly refused to all their clerks or servants who ever applied for such a permission; your memorialists beg leave again to repeat, that they were not in any manner privy to the aforesaid dealings and transactions by and between the said J. K. and G. H., nor were they at all apprized of the same, until after the institution of this prosecution; and they never partook, directly or indirectly, of any part of the gains or profits arising therefrom. That in a penal proceeding like the present, your memorialists humbly submit they ought not to be charged, and that the law will not charge them with the personal default or misconduct of their servants, committed entirely without their knowledge or suspicion. And the truth of this statement is manifested by the annexed affidavit., Your memorialists are advised and feel confident that, under these circumstances, they have a good and sufficient defence against the said information; but, as they are of course anxious to avoid the expense of defending a Crown prosecution, and are desirous also of avoiding the public imputation of a violation of the law, of which knowing themselves to be innocent, they are unwilling to be publicly accused; and as they feel assured that your Honors act on principles of public justice, and would not continue a prosecution after every appearance or suspicion of guilt has been removed, they have thought it right to submit this statement to your Honors' consideration, and they humbly pray That your Honors, under the circumstances aforesaid, will be graciously pleased to direct your solicitor to instruct his Majesty's Attorney-General to enter a noli prosequi on the record of the said information; or that your Honors will grant to your memorialists such other relief in the premises as to your Honors shall seem just. And your memorialists shall ever pray, &c. This memorial was accompanied with the following affidavit, made by J. K. himself, the actually guilty party, and by the three defendants. J. K. had been convicted, and had compounded the penalties incurred by him: A. B., C. D., and E. F., of &c., wholesale grocers and tea dealers, the above-named defendants, and J. K., late of &c., but now of &c., grocer, and late salesman in the warehouse of the said defendants, severally make oath and say; and first defendants for themselves say, that these defendants have for upwards of sixteen years last past carried on business as wholesale grocers and tea dealers in , aforesaid, in an extensive way, and with uniform credit and reputation, and have never been knowingly guilty of any violation of the revenue, or of any other laws, in the course of carrying on their said business. But notwithstanding the inviolate good conduct of the said defendants in this respect, they were lately, to their great surprise, served with process issuing out of the Court of Exchequer, requiring them to appear to an information to be filed against them in that Court, by his Majesty's Attorney-General. Whereupon the said defendants caused an appearance to be entered for them accordingly, and they have taken an office copy of such information, by which it appears that they are charged in ten several counts, with having, in the year 1815, sold and delivered to one G. H., therein stated to be a licensed brewer of beer, the said defendants being charged in the said information with knowing him to be so licensed, a quantity of liquorice contrary to law, for which a penalty or penalties is or are sought to be recovered. And the said defendants are further charged in the said information, with having sold and delivered to the said G. H., knowing him to be so licensed, a quantity of molasses, contrary to law, for which further penalties are sought to be recovered. But the defendants say, that they never knowingly engaged, either directly or indirectly, in any illegal, illicit, or prohibited course of trade, and particularly defendants positively state, that they are wholly innocent of all and every the supposed offences, in and by the said information imputed to them. And the said defendants further say, that they have always been in the habit of &c., [stating the substance of the memorial, as to their practice of allowing their servants to have their goods at wholesale prices]. And the said defendants further say, that they now find to their great surprise, that the said J. K. was in the habit of occasionally using the printed invoices of the said defendants' warehouse, for making out the bills of parcels of goods really belonging to and sold by himself. But the said defendants, and also the said J. K., positively state, that he had no authority whatever from them for so doing, and they were not aware of the practice at the time, it being a violation of the establish III. Proceed ings, &c. Affidavit in support of the said memorial. III. Proceeded regulation at their house, and permission for which they have constantly and uniings, &c. formly refused to all their clerks or servants who ever applied for such a permission, and all these deponents positively say, that they, the said defendants, were not in any manner privy to the aforesaid dealings and transactions, by and between the said J. K. and G. H., nor were they at all apprized of the same, until after the institution of this prosecution, and they never partook directly or indirectly of any part of the gains or profits arising therefrom. Proceedings there on. Rejection of the petition. Result. What. How put in force. On a peer. Manner of. Infants. Coming to life after hanging. Person attainted at large. Sworn, &c. Notwithstanding this memorial and affidavit, the petition was not attended to, and the following singular letter was returned : Messrs. A. B., C. D., and E. F. The Attorney-General v. Messrs. A. B., C. D., and E. F. I am desired to acquaint you, that the honourable Board of Excise have refused to L. M., Officer. The information was tried, and, after wasting several hours, a juror was withdrawn. The gentlemen at present having the care of this branch of the Revenue observe a much more candid, liberal, and honourable course of conduct. Excommunication. See ante, Vol. I. p. 637. Execution. EXECUTION is the last performance of an act, as of a judgment, &c. It is the obtaining possession of any thing recovered by judgment of law. 1 Inst. 289. Execution is in general put in force by a judicial writ, grounded on the judgment of the Court from whence it issues. But, in case of life, the Court may command execution to be done, without any writ. 2 Hawk. c. 51, s. 4; Finch, 478. In fixed and stated judgments, the law makes no distinction between a peer and a commoner, or between a common and ordinary case, and one attended with extraordinary circumstances; for which reason it was adjudged in Felton's case, who murdered the Duke of Buckingham, that the Court could not order his hand to be cut off, nor make it part of the sentence that his body should be hanged in chains, but that the body after execution, being at the King's disposal, might be hung in chains, or otherwise ordered as the King should think fit. 2 Hawk. c. 48, s. 2. As to the manner of an execution, it cannot be lawfully executed by any but the proper officer, the sheriff or his deputy. 2 Hawk. c. 51, s. 6; 2 Hale, 411. The execution must be done pursuant to the judgment. 2 Hale, 411. The sheriff cannot alter the execution; if he doth, it is felony, and some say murder. 2 Hale, 411; Co. P. C. 211. Though the King cannot alter the judgment, he may remit a part of it; as, in treason, he may pardon all but the beheading. 2 Hale, 412. Such pardon must be under the great seal. Id. Fost. 269. The execution of persons under the age of discretion is usually respited, in order to obtain a pardon. 1 Hawk. c. 1, s. 8. It is clear that if a man, condemned to be hanged, come to life after he be hanged, he ought to be hanged again; for the judgment was not executed till he was dead. 2 Hawk. c. 51, s. 7. Where a person attainted hath been at large after his attainder, and afterwards is brought into Court and demanded why execution should not be awarded against him, if he deny that he is the same person, it shall immediately be tried by a jury returned for that purpose. 2 Hawk. c. 51, s. 3; vide Ratcliff's case, Fost. 40, 41; 1 Bla. R. 3, S. C.; but see Duberley v. EXECUTION. Gunning, Peake's C. N. P. 98. As to execution of murderers, see title Homicide, Vol. III. p. 256; of Execution of transportation, see title Transportation, Vol. V. As to Pardons, see title deed. Pardon, Vol. V. As to proof of execution of a deed, &c. see ante, p. 56, 58. Exemplification of Record, &c., Proof by, see ante, p. 42. Exigent, Process of, see post, Process, Vol. V. Exile. See Transportation, Vol. V. Ex Officio, Proof of Matter ex officio noticed by the Courts, ante, p. 22;-Informations ex officio, see Information, Vol. III. p. 366. Expenses, &c. see Costs, Vol. I.; Fees, Vol. II. Exporting Tools, &c., Laws as to, repealed by 5 Geo. IV. c. 97;-as to Exportation in General, see Excise, Vol. II. Extortion. It is said that extortion, in a large sense, signifies any oppression under What. As to threats to extort, see title Threats, Vol. V. A misdemeanor at common law. Coroners. Extortion was, and still continues, a high misdemeanor at common law, and punishable by fine and imprisonment; Co. Lit. 368. b.; and, therefore, an indictment at common law lies against a judge for taking a fee for his judgment, an officer for receiving more than the usual fee, a ferryman for taking more than is due to him by prescription, or a sheriff for refusing to execute process till his fees are paid him. Com. Dig. Extortion, (A). As to extortion by coroners, see ante, Vol. I. p. 884, 886. As to extortion by innkeepers, see ante, Vol. I. p. 95, 105. As to extortion by toll-gate keepers, see title Highways, Vol. III. p. 143. Tollkeepers. And by stat. 3 Edw. 1, c. 26, (which is only in affirmance of the com- By stat. 3 Edw. 1, mon law), "No sheriff, nor other the King's officer, shall take any reward c. 26. to do his office, but shall be paid of that which they take of the King; and he that so doth, shall yield twice as much, and shall be punished at the King's pleasure." No sheriff nor other the King's officer]-Under these words, the law beginning with the sheriffs, are understood escheators, coroners, bailiffs, gaolers, and other inferior officers of the King, whose offices were instituted before the making of this act, which do any way concern the administration or execution of justice, or the common good of the subject, or for the King's service. 2 Inst. 209. Also the justices of the peace, whose office was instituted after this act, are bound by their oath of office to take nothing for their office of justice of the peace to be done, but of the King, and fees accustomed, and costs limited by statute. Innkeepers. Who may be guilty of. EXTORTION. Accessaries. What may be taken. For what. Punishment and penalty. And generally, no public officer shall take any other fees or rewards for doing any thing relating to his office, than some statute in force gives him, or else as hath been anciently and accustomably taken; and if he do otherwise, he is guilty of extortion. Dalt. c. 41; and see 1 Russ. 222. But where a person was appointed collector of certain duties under 43 Geo. III. c. 99, by the proper constituted authorities, and considered himself, and was considered by those authorities to be such collector, but whose appointment was informally made, it was decided that he could not be indicted at common law for the receipt of duties by colour and pretence of being collector of such duties, though the money were fraudulently collected and misapplied by him, because he was in fact appointed collector, and in that character received the money. R. v. Dobson and another, 7 East, 218. A collector of post horse duty demanded of A. a sum of money, alleging that A. had let out horses for hire, without payment of the duty. A. denied that he had done so, and gave the collector a promissory note for 51., the amount of which, after it became due, was paid by A. to the collector, who handed it over to his principal, the farmer of the post horse duties. Held, that this was extortion in the collector, and that his having paid the money over to his principal made no difference. R. v. Higgins, 4 C. & P. 247. A sheriff is not liable to be indicted for the extortion of his officer; Saun derson v. Baker, 3 Wils. 316; but he may be sued for it. Woodgate v. Knatchbull, 2 T. R. 148. There are no accessaries in extortion. 1 Str. 75. Shall take any reward]—Therefore, by this statute, they can at this day take no more for doing their office than hath been since allowed to them by authority of Parliament. 2 Inst. 210. All prescriptions which have been contrary to this statute, and to the common law, in affirmance of which it is made, have been always holden to be void. 1 Hawk. c. 68, s. 2. It is equally extortion, where a greater fee is exacted than what is legally due; as where money is exacted as a fee, where none whatever is payable. 2 Salk. 680; 1 Hawk. c. 68, s. 1. It has been resolved, that a promise to pay them money for doing of a thing, which the law will not suffer them to take any thing for, is merely void. 1 Hawk. c. 68, s. 2; 2 Burr. 924; 1 Bl. Rep. 204. To do his office]—It is not said, that he shall take no reward generally, but no reward to do his office: thus the fee of 20d., called bar fee, time out of mind taken by the sheriff of every prisoner that is acquitted, is not against this statute; for it is not taken for doing his office. 2 Inst. 210; but see title Gaols, post, 1039. But there seems to be no necessity for this distinction; for it cannot be intended to be the meaning of the statute to restrain the courts of justice, in whose integrity the law always reposes the highest confidence, from allowing reasonable fees for the labour and attendance of their officers; the chief danger of oppression is from officers being left at their liberty to set their own rates on their labour, and make their own demands; but there cannot be so much fear of these abuses, while they are restrained to known and stated fees, settled by the discretion of the courts, which will not suffer them to be exceeded, without a proper resentment. 1 Hawk. c. 68, s. 3; 2 Inst. 210, 211. But, in the ecclesiastical court, a person was libelled against for fees, and, upon motion, a prohibition was granted, for that it was holden that no court had a power to establish fees; the judge of a court may think them reasonable, but that is not binding; but if, on a quantum meruit, a jury think them reasonable, then they become established fees. 1 Salk. 333; Hardr. 351. The fees in sessions, for traversing, trying, or discharging indictments. discharging recognizances, and the like, do vary according to the different customs in different places. Dalt. c. 41. Shall yield twice as much]-At the common law this offence is severely punishable at the King's suit by fine and imprisonment, and also by a removal from the office in the execution whereof it was committed. And this statute doth add a greater penalty than the common law did give; for |