Respublica v. Hannum , 1 Yeates 71 ( 1791 )

Per Curiam.

The charges againt Mr. Hannum are extortion and oppression. Probable cause was shewn why the rule should be taken.

*741 * The defendant has now shewn cause, that he has -■ not taken more fees than were usual in Chester county. This is proved by the certificates of five gentlemen in the commission. But the rule of charging fees by the justices of Chester county is certainly illegal. It is a greater gratuity than any officers usually receive for their services. By an act of assembly passed 27th November 1779, the right of an officer to take fees, as regulated by law or practice was rec-nized; but it could not have extended to an usage like the present. The justices had no right or power to fix their own fees. The defendant’s conduct, therefore, was not justifiable, but is against law.

The next question is, whether it is excuseable. It does not appear to us that there was a disposition in the defendant to oppress. He endeavoured to accommodate the dispute; he declined issuing his warrants. A justice of the peace is not bound to issue his warrant whenever it is applied for. He must use a legal discretion, and determine, on a mature consideration of all the circumstances, whether a warrant should issue. There appear no criminal intentions, passionate expressions, threats, or partiality. It is proved that the prosecutor, believing the bill to be reasonable, actually paid it willingly. We are therefore unanimously of opinion, that there are no proper grounds for a prosecution by way of information.

At the same time we publickly express our opinion, that the fees are illegal; and we hope after this discussion, that such practice will be discontinued. After a recognizance was taken to answer for the riot, warrants should not have issued for the assaults and batteries, which were the overt acts of the former offence. The whole was perpetrated at one time, and must be considered as one offence. We are also of opinion, and recommend it to Mr. Hannum, that his bill should be properly taxed, and that he should return to Thomas the monies not due under such taxation, and discharge him, paying costs.

The defendant requested hereupon that the fees might be taxed by the justices of the Supreme Court, at the ensuing court of Nisi Pritis to be held for Chester county, which was accordingly done by M’Kean Chief Justice and Yeates, and upon a full examination of all the papers and witnesses, Mr. Hannum’s bill was reduced to 61. 6s. 6d.