Little vs. Commonwealth. Such is clearly the presumed object and intent of the foregoing enactment. The quashal of the indictment in this case did not bar a continued or renewed prosecution for the same offense. Nor did it deprive the appellant of his right to surrender or arrest the accused and put him in the custody of the court, subject to trial under such prosecution, and thus bring himself within the 94th section of the Criminal Code. And even if he was deprived of the right of arrest, his own voluntary act procured the quashal now urged as the ground of his exoneration as bail, and the cause of his inability to claim the benefit of the court's discretionary remission. We are, consequently, of the opinion that there was no error in adjudging execution against the appellant for the amount specified in the forfeited recognizance. Wherefore, the judgment is affirmed. Commonwealth vs. Mitchell. CASE 9-INDICTMENT No. 7-DECEMBER 7. Commonwealth vs. Mitchell. APPEAL FROM DAVIESS CIRCUIT COURT. 1. Extortion, which is an offense at common law, is defined to be an abuse of public justice, which consists in any officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due him, or more than is due him, or before it is duethe punishment for which is fine and imprisonment, and sometimes a forfeiture of the office. (4 Blackstone, 141.) 2. An indictment charging the defendant, a jailer, with the offense of extortion, by willfully and corruptly compelling a prisoner to pay him money to which he was not entitled-held to be good, and that the facts set forth were sufficient to constitute the offense charged 3. If the marshal brought the prisoner to the jailer without an order of commitment, he should not have received him; and it was his duty to have discharged him at once without demanding or receiving any money or thing of value from him whatever therefor. JOHN RODMAN, Attorney General, CITED For Appellant, Rev. Stat.,.sec. 2, art. 16, chap. 28, 1 Stant, 396. CHIEF JUSTICE PETERS DELIVERED THE OPINION OF THE COURT: The grand jury of Daviess county found an indictment against appellee for extortion, committed substantially as follows: That one O'Bryan was arrested by the marshal of the city of Owensboro for being intoxicated, swearing, and otherwise misbehaving, and was delivered to appellee as jailer of Daviess county, to be confined in the jail of said county until the day following, and then and there to be tried by the city judge for the offenses charged against him; that he was committed about 6 Commonwealth vs. Mitchell. o'clock in the evening and detained until 10 P. M., when appellee willfully and corruptly compelled said O'Bryan to pay him five dollars, charged as his fee for receiving and detaining him in the jail as aforesaid, which sum he collected, and then and there corruptly and voluntarily set him at liberty, and permitted him to depart; said appellee then being the jailer of said county. To the indictment a demurrer was sustained, and the Commonwealth has appealed. Extortion, which is an offense at common law, is defined to be an abuse of public justice, which consists in any officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due him, or more than is due, or before it is due-the punishment for which is fine and imprisonment, and sometimes a forfeiture of the office. (4 Black., 141.) The fees which appellee was authorized by law to charge a prisoner properly committed to his custody, are forty cents for putting in and releasing a prisoner, and for keeping in jail, dieting, &c., fifty cents per day; so that the fees which by law he was entitled to demand, could not exceed ninety-five cents as attached to his office, and to demand and receive more than the amount specified, according to the definition of the term, was extortion, the same having been taken under color of his office, if O'Bryan was imprisoned by lawful authority; and if, as appears to be the case, the marshal brought the prisoner to him without an order of commitment, he should not have received him; and it was his duty to have discharged him at once without demanding or receiving any money or thing of value from him whatever therefor. It therefore appears that the facts set forth in the indictment are sufficient to constitute the offense charged. Hill, &c., vs. Turner. Wherefore, the judgment is reversed, and the cause is remanded, with directions to overrule the demurrer to the indictment, and for further proceedings consistent herewith. CASE 10-PETITION ORDINARY-DECEMBER 7. Hill, &c., vs. Turner. APPEAL FROM MADISON CIRCUIT COURT. When it appeared that the failure to make a debt was not the sheriff's fault, and certainly did not result from his failure to return the execution within thirty days after the return day thereof, the plaintiff in the execution had no legal right to recover against him any portion of his uncollected debt under section 4, article 18, chapter 56, Revised Statutes. The amendatory act of August 28th, 1862 (Myers' Sup., 213), did not apply in this case, because it was enacted while this suit was pending. The plaintiff in the execution, consequently, was legally entitled to recover thirty per cent. on the uncollected balance of his execution for the failure to return within the thirty days. Myers' Sup. to Rev. Stat., 213; Act of Aug. 28, 1862. Hill, &c., vs. Turner. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: This action, as finally prepared, seeks from the sheriff and his sureties a balance uncollected by execution, and thirty per cent. thereon for the sheriff's failure to return the execution until the expiration of thirty-one days after the return day. The return day was the 13th of May, 1861, and the official return was made on the 13th of June, 1861, which, as there were thirty-one days in May, was one day beyond thirty days after the return day. The petition alleges the insolvency of the execution debtors shortly after the return of the execution; but also alleges that the debt might have been made under the execution. The answer denies that more could have been made than was collected and returned by the sheriff; and, on that issue, the only proof is the return itself of the fact that a small portion of the property levied on was not sold for want of bidders, and that the appellee procured no venditioni exponas, but had another fi. fa. issued and made returnable to the 1st of March, 1862, under the statute of 1861 suspending certain civil proceedings, including executions, and which last fi. fa. was levied on other property never sold because it was mortgaged, and the appellee failed to indemnify the sheriff for a sale of it. From these facts we cannot judicially presume that any portion of the appellee's debt was lost by the nonprecise return of the first execution, but must infer that, if more might have been made than was made, the failure to make it was not the sheriff's fault, and certainly did not result from his failure to return the execution within thirty days after the return day; and, consequently, as the debtors are insolvent, the appellee has no legal right in this action to recover (under article 18, chapter 56, section 4, |