This is an indictment against a justica of the peace for extortion,’ The indictment charges that the defendant, being a justice, &c., did, unlawfully and by colour of his office, take.and extort from one Robert Still the sum.of three' dollars; which sum of thr’ee dollars was not then and there due to the said justice; and which sum was three dollars more than was then and.there due to the said justice; contrary to the form of the statute, &c. There is a second count to the same effect with the first. ' The Circuit Court, on motion of the defendant, quashed the indictment.
This indictment is clearly defective. ' There .is express authority for saying that, in an indictment for extortion where nothing is due, it must be' averred that nothing was due; .and that if the charge be for taking more than was due, the indictment must show how much was due. Neither of these allegations is contained in this indictment; and it cannot, therefore, be supported. Lake’s Case, 3 Leonard’s Rep. 268.—4 Comyn’s Digest, 154.
The judgment is affirmed. To be certified, &c.