
    * Thomas Lincoln versus Jonathan Shaw.
    In debt on the fee bill for extortion, the declaration alleged that the defendant had received the unlawful fees from A. The evidence was, that they were paid by B, who received the money from the father of A for the purpose ; A being a minor, for whose use the services were performed; and it was held not to maintain the declaration.
    In such action, it is no defence that many other officers of the same county habitually receive greater fees than those which the defendant had received.
    This was an action of debt upon the sixth section of the statute of 1795, c. 41, commonly called the fee bill, to recover of the defendant, a justice of the peace for the county of Bristol, a penalty of thirty dollars, for demanding and receiving of one George Lincoln greater fees than are allowed by said statute, for the copies of the papers in a certain action which had been tried before the said Shaw, and from whose judgment therein, the said George Lincoln had appealed.
    On the trial of this action before the Court of Common Pleas for the county of Bristol, from which it came into this Court upon exceptions filed by the defendant, it was proved by the plaintiff that the payment for the copies before mentioned was made by one Witherell, without any request from the said George, and without his knowledge ; that the money was furnished to Witherell, for the purpose of paying for the said copies, by the plaintiff, who is the father of the said George.—The defendant objected to the sufficiency of this evidence to support the allegations in the declaration.
    To prove what were the customary fees received in the county for similar services, the defendant offered in evidence a large number of copies from the register of deeds, the register of probate, the clerk of this Court, and very many justices of the peace, on which the fees charged were greater than those received by the defendant in this case, and which were made prior to the com meneement of this action, and prior to the making of the copies by the defendant.—The plaintiff objected to the admission of this evidence, and it was rejected by the Court.
    The Court instructed the jury that, as the said George was a minor, and the money was furnished by his father, the payment by Witherell must be considered as made by the said George. [ * 411 ] * After the jury had returned with their verdict against the defendant, it was discovered that they had not had the pleadings with them in their chamber, although they had been read to them at the opening of the cause. A motion for a new trial, made by the defendant on all these grounds, was overruled by the Court.
    
      L. Williams, for the defendant,
    in support of the objection taken at the trial to the plaintiff’s evidence, cited the cases of Bristow vs. Wright 
      , and Commonwealth vs. Morse 
      .
    The evidence proved no extortion technically. If the plaintiff chose, of his own motion, to send this money to the defendant, it is impossible to convert this into extortion practised upon his son .
    The evidence offered by the defendant, which the Court rejected, furnished a strong presumption that the defendant did not act corruptly. It was proper evidence for the jury, and it was not the part of the Court to judge of its force and weight. The defendant could hardly be conscious that he was committing an offence against law, in following the example of the respectable officers of the county, and of many other magistrates .
    The mistake which took place in reference to the pleadings not being submitted to the jury, we should not insist on, but for the circumstances of hardship attending this case .
    
      W. Baylies, for the plaintiff.
    It is not material of whom the defendant received this money. It was paid, in contemplation of law, by George Lincoln. Had the declaration alleged the money to have been received of the plaintiff, the evidence would not have maintained it. But if this were not so, the variance is immaterial, and a new trial will not be granted for this cause .
    The evidence of the custom of officers in the county, to demand and receive illegal fees, was properly rejected. The defendant was bound to know that his fees were regulated by statute, and did not depend on the habit of others.
    
      * Shed’s case was very distinct from this. The question [*412] was there merely of construction. In the case at bar there was no pretence of a mistake or misconception of the law.
    The loss of the pleadings cannot be material after verdict. The jury understood the issue submitted to them, as well as if they had had the paper with them. The case of Whiting vs. Cochran 
       was a stronger case than the present, as to this point.
    
      
      
        Doug. 665.
    
    
      
       14 Mass. Rep. 217. See, also, 1 Ckitty on Pleading, 302, &c.
    
    
      
       10 Mass. Rep. 210, Dunlap vs. Curtis.
      
    
    
      
       1 Mass. Rep. 227, Commonwealth vs. Shed.
      
    
    
      
       7 Mass. Rep. 207, Bond vs. Cutler.—4 Mass. Rep. 436, Brown vs. Chase.—8 Mass. Rep. 67, Brown vs. The Commonwealth.—6 Mass. Rep. 1, Holmes vs. Wood.
    
    
      
       7 Mass Rep. 67, Cunningham vs. Kimball.
      
    
    
      
       9 Mass. Rep. 532.
    
   Curia.

The declaration charges the defendant with having unlawfully and corruptly demanded and received of George Lincoln greater fees than the law prescribes, for certain copies furnished by the defendant in his office of justice of the peace. The evidence-was, that one Wither ell received the money of the plaintiff, father of the said George, and paid it to the defendant. We think the declaration not supported by this evidence. The person from whom the money is received is he on whom the extortion is practised.

The evidence offered by the defendant, showing that certain other public officers in the county of Bristol, whose fees are regulated by the same law, have been in the" habit of receiving greater fees than the law allows, was properly rejected by the Court. It had no tendency to justify or excuse the defendant. If it were to be otherwise held, the consequence might be a com bination of officers; and the illegal acts of each would always be excused by the illegal acts of the rest.

As a new trial is to be had, it is not necessary to decide upon the effect of the mistake, which occurred at the former one by the pleadings not having been given to the jury amongst the other papers in the case. A new trial ordered.  