
    * Commonwealth versus Jason D. Cony.
    Tne receiving a negotiable promissory note by an officer, for fees not due, will not support an indictment for extortion.
    The indictment charges that the defendant, being a deputy sheriff of this county, with force and arms, by color of his office, did wilfully and corruptly demand and receive of one Joseph Clif ford, for the service of a certain execution against the said Clifford, and wherein one Theophilus Hamblin was the creditor, a greater fee for the service of the said execution than by law was provided, viz., 9 dollars and 17 cents, when in fact there was due to him no more than 1 dollar and 2 cents, —against the form of the statute, &c.
    Upon not guilty pleaded, the jury found the defendant guilty. The verdict was taken subject to the opinion of the Court upon the report of Judge Sewall, before whom the cause was tried, respecting certain matters of law arising therein.
    The principal question arising in the cause was, whether a negotiable promissory note given by the judgment debtor to the officer for his fees, payment of which was not proved, would support this indictment, which charged him with extortiously receiving money.
    It was contended by the defendant’s counsel that, the note being a void promise, as made without any consideration, or for an illegal one, it was not a payment of money so as to support a charge for extortion. It was attempted also to show some variance between the sums charged by the indictment to have been received, and the sum which appeared, by the report of the judge, to have been actually secured by the promissory note ; and it was contended that
    
      by such variance the defendant might be exposed to another indictment for the same offence, to which this conviction would not be pleadable in bar. But this objection was not much relied on.
    
      The Solicitor-General
    
    observed that this practice of taking negotiable notes for illegal fees was growing very frequent in this part of the state, and was becoming very oppressive. It was therefore extremely desirable that, by the animadversion of the Court, it should, if possible, be checked.
    
      Wilde for the defendant.
   * By the Court.

It is our opinion, after considera tian, that the evidence does not support the indictment. The defendant is charged with extortiously receiving 9 dollars and 17 cents; but the receipt of a negotiable note, by which that sum is promised to be paid, is not. the receipt of money. The statute on which the indictment is drawn, commonly called the Fee Bill, provides for the payment of certain fees for the services therein de scribed, and prohibits the wilful and corrupt taking of greater fees, under the penalty of 30 dollars. If the indictment had conformed to the evidence, we should have doubted whether the statute would have been pursued.

To constitute extortion at common law, there must be the receipt of money, or of some other thing of value. This note, when made, was ipso facto void, the consideration of it being illegal, and it was consequently of no value.

If this statute should be revised, it would deserve consideration whether it would not be proper to extend the penalty of extortion to the unlawful receiving any promise or security for the payment of fees not allowed, agreeably to the provision of 27 Eliz. c. 6, and further, to make such promise or security, like a usurious contract, absolutely void, so that the party injured might be protected against even an innocent endorsee.

Let the verdict be set aside, and a new trial granted. 
      
      
        Co. Litt. 368, b.
     
      
      
        Commonwealth vs. Pease, 16 Mass. Rep. 93
     