
    * Samuel Livermore versus Joseph Boswell
    In an action against a sheriff for extortion, in receiving illegal fees on the service of an execution, a declaration which describes the parties to, and the date of the execution, is sufficient after verdict So, if it shows the sum received as fees, and the sum levied, without setting forth the whole transaction.
    If the date of an original writ is posterior to the date of the service, this, being matter in abatement, is waived by the defendant’s appearing and pleading the general issue.
    This was an action of debt, brought to recover of the defendant, who was a deputy sheriff, the penalty of thirty dollars, imposed by tatute 1795, c. 41, § 6, commonly called the fee bill, on any person who shall wilfully and corruptly demand and receive any greater fee or fees, for any of the services in that act enumerated, than are therein allowed and provided.
    The declaration recites the provision of the statute, that the fees of sheriffs for levying executions in personal actions, shall be, for the first one hundred dollars, four cents for every dollar; for every dollar above that, and not exceeding two hundred dollars, two cents for every dollar; and for all above two hundred dollars, one cent for every dollar; travel, four cents a mile ; also, the section imposing the penalty. The declaration then alleges that the defendant, being a deputy sheriff, as aforesaid, at a day and place named, had in his hands and possession our execution in favor of, &c., against the plaintiff, which execution issued from the clerk’s office of our Court of Common Pleas, for the sum of eighty dollars fifty-six cents damage, and eighteen dollars twenty-seven cents costs of suit. And the said Boswell, having said execution in his hands and possession, as aforesaid, did then and there, for levying and collecting the sum of fifteen dollars on said execution, wilfully and corruptly demand and receive, of the said Livermore, more than after the rate of four cepts on a dollar, and more than after the rate of four cents per mile, to wit, the sum of four dollars for levying and collecting the sum of fifteen dollars. And the plaintiff avers that the fee allowed by law, and which the said Boswell, in his said capacity, was authorized to receive, amounted to the sum of sixty-four cents, and no more. W hereby an action has accrued to the plaintiff, &c.
    The cause was tried at the last September term in this county, before Thatcher, J., upon the general issue, and a verdict found for the plaintiff.
    [ * 438 ] * The defendant moved in arrest of judgment, —
    “ 1. Because it does not appear by the plaintiff’s declaration from what court the execution, therein set forth, issued, nor to what court the same was returnable.
    
      “ 2. Because it does not appear from said declaration how much was levied and collected by force of said execution.
    
      “ 3. Because it appears by the plaintiff’s writ that the same was never legally served on the said Boswell, the coroner’s return bear ing date the 26th of November, 1806, and the writ bearing date the 25th of December, 1806.”
    This motion was briefly argued at this term by Wilde for the plaintiff, and Mellen for the defendant; after which the opinion of the Court was delivered by
   Parsons, C. J.

If the first objection had been taken upon demurrer, it might have prevailed; but it is cured by a verdict; for the jury could not have convicted the defendant, unless a regular execution, in due form, and issued by a court having jurisdiction, and not then returnable, had been given to them in evidence. The declaration states the parties to, and the date, of the execution, so that a judgment in this action may be pleaded in bar to another action for the same extortion, averring the identity of the judgment and execution.

The second objection is, that there is no allegation of the sum levied and collected by force of the execution. It is alleged that, for levying and collecting fifteen dollars, the defendant received four dollars; and that the fees received were greater than are allowed by law for poundage and travel; which is certain enough. For it is not necessary to set forth the whole transaction in this case, as in usury, where the illegal contract must be precisely set forth and proved.

The third objection goes to the service of the original writ in this action. But this is matter in abatement, which is waived by the defendant’s appearing, and pleading the general issue.

Let judgment he entered according to the verdict.  