Commonwealth v. Cony

2 Mass. 523

Opinion

* 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.

(1) 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. (a)

Let the verdict be set aside, and a new trial granted.

Co. Litt. 368, b.

Commonwealth vs. Pease, 16 Mass. Rep. 93