delivered the opinion of the Court.
This is аn indictment for extortion, preferred against the defendant in error, a justice of the peace of Shelby county, in the criminal court of that county. The defendant by counsel moved the court to quash the indictment, and his motion was sustained, and the indictment quashed.' Thereupon the district attorney, for thе State, excepted to the ruling of the court, and prayed and was granted an appeal to this, court. The record fails to disclose the grounds of the motion of the defendant, and no brief hаs been filed in his behalf.
The charge in the indictment is that the defendant demanded and received from G. Y. Janes, who had been brought before him under arrest upon a warrant charging said G. V. Janes with assault and battery, fifty cents as a fee for taking' an appearance bond before said fee was due. The fee collected is the amount allowed by the statute. Shannon’s Code, section 6387. No comрlaint is made of the amount of the fee demanded and received. The gist of the charge is that it was not then due; the bond being for the appearance of Janes before the justice of the peace on a day to which the case before him had been continued.
Extortion under common law has been defined by this
It is defined by another able authоr upon Criminal Law in these words: “Extortion in its general sense signifies any oppression by color of right; but teсhnically it may be defined to be the taking of money by an officer by reason of his office, either whеre none is due or where none is yet due.” 2 Wharton’s Criminal Law (9th Ed.), section 1574. All other authorities we have bеen able to examine are to the same effect. 12 Encyclopedia of Law (2d Ed.), 576, 577; Levar v. State,
The prоvisions in the Code of Tennessee upon the subject of extortion are as follows:
“No officer is allowed to demand or receive fees or other compensation for any service further than is expressly provided by law.
“If any officer demands or receives any other or higher fees than are prescribed by law he is liable to the party aggrieved in the penalty of fifty dollars to be recovered before any justice of the peace, and is also guilty of a misdemeanor in office.” Shannon’s Code, sections 6352, 6353.
“Extortion by Officer. — For any person knowingly to demand or receive of anоther for performing any service or official duty for which a fee or compensation is estаblished by law, any greater fee or compensation than*553 is legally allowed or provided.” Shannon’s Code, section 6714.
It may be said that these provisions do not make the collection of a lawful fee before it is due extortion. We think the first section quoted does cover such a case. By it аn officer is prohibited from demanding or receiving fees for any service further than is expressly provided by law. This not only refers to the amount of the fee, but to the time when it is due by law. But, if this was not so, the indictment wоuld be good under the common law. There is no doubt but that under it the collection of a fee befоre it becomes due and payable is extortion. There is nothing in our statute affirmatively changing the сommon-law offense of extortion in this particular. If the statute does not include and cover suсh a case, it leaves the law as it was before its enactment. It is well settled that a statute will not bе construed to alter the common law, further than the act expressly declares or than is necessarily implied from the fact that it covers the whole subject-matter. Horne v. Railroad Co.,
The question then is, was the fee which the State allows for taking a bail bond due when demanded and received by the defendant?
We think clearly it was not, and that the defendant
The tailing of a bail bond is a clerical act. It is so when taken by a justice of the peace, as he acts in such matters both, as judge and clerk; in other words, he is clerk of his own court.
A clerk of a court has no right to collect his fees from a litigant before the termination of the case in which the services are rendered. Carren v. Breed,
The case before the defendant, Cooper, had not beеn heard. No judgment had been rendered in it. It had not been determined that the defendant was liable for the costs. If he should plead guilty, he could be taxed with .the costs; but if he should plead not guilty, and be dischargеd, the costs would not be adjudged against him. If he was bound over to court and the indictment ignored, or if indictеd and acquitted, he would not be liable for costs. Shannon’s Code, section 7619.
The defendant, therefоre, as justice of the peace, had no right to collect his fee of fifty cents for taking a bail bond until it had been adjudged upon some disposition of the case by final judgment that the defendant was liable for it.
For the foregoing reasons, the judgment of the criminal court is reversed, and the case remanded to that court for further proceedings.