tract; but the terms here used, though not so accurately worded, mean, I think, the same thing. 1805. DOE against SPENCE LE BLANC, J. This case falls directly within the rule of construction laid down in Doe v. Snowdon; and if there were conflicting cases, I should abide by that as the most useful in experience, and not contrary to law. According to that case then, the Court will look to the substantial time of the holding; which is from Lady-day, the rent being payable at Michaelmas-day and Lady-day; though for con- [126] venience sake the incoming tenant is to enter on the arable land at Candlemas. Such land, from Candlemas to Ladyday, is not in a condition to yield profit to the outgoing tenant; and the only sense of requiring previous notice to be given him to determine his tenancy is, that he may not be injured and deprived of his profits by being turned out on a sudden, or on short notice; but it is no injury to him for the incoming tenant to come in upon the arable lands at Candlemas. Rule discharged. The KING against SOUTHERTON, one, &c. THIS was an information filed by the Attorney-General against the defendant, an attorney of this Court; upon which he was tried and convicted at the last assizes for the Monday, Threatening by letter, or other wise, to pnt in motion a prose cution by a pub. lic officer to re cover penalties for selling Fryar's Balsam without a stamp (which by stat. 42 Geo, 3, c. 56, is prohibited to be vended without a stamped label) for the purpose of obtaining money to stay the prosecution, is not such a threat as a firm and prudent man may not be expected to resist; and, therefore, is not in itself an indictable offence at common law, although it be alleged that the money was obtained; no reference being made to any statute which prohibits such attempt. But it seems that such an offence is indictable upon the stat. 18 Eliz. c. 5, s. 4, for regulating common informers, which prohibits the taking of money, without consent of Court, under colour of process, or without process, from any person, upon pretence of any offence against a penal law. But no indictment for any attempt to commit such a statutable misdemeanor can be sustained as a misdemeanor at common law, without at least bringing the offence intended within, and laying it to be against, the statute. Though if the party so threatened had been alleged to be guilty of the offence imputed within the statute imposing the duty and creating the penalty, such an attempt to compound and stifle a public prosecution for the sake of private lucre, ia fraud of the revenue, and against the policy of the statnte, which gives the penalty as auxiliary to the revenue, and in furtherance of public justice for example's sake, might also, upon general principles, have been deemed a sufficient ground to sustain the indictment at common law. County 1805. The KING against county of Somerset, upon the fourth and subsequent counts. The fourth count charged, That the defendant, on the 23d of August, 1803, wickedly and corruptly intending to abuse SOUTHERTON. the laws made for the protection of his Majesty's revenue, and support of his government, to the oppression of the subject, and to his own corrupt gain, and thereby to bring the same laws into hatred and contempt," and without any purpose [127] of causing the same to be carried into legal execution" for the good of the realm, sent a letter of that date to R. and W. Allen, to the tenor and effect following, viz. "Sirs, I (the defendant) am applied to, to prosecute an information against you (the Allens) for selling certain medicines without stamps. I have told the parties, That all such informa tions must now be prosecuted by the public officer; and have advised them to let me write you on the subject, and hear what you have to say. If I can be of any service to you in stopping them, you will write me accordingly; and I will get the best terms I can" (signed by the defendant) with intent to extort and procure money from the said R. and W. Allen, for the purpose of preventing the said prosecution, in the said letter alleged to be intended against the said R. and W. Allen, from being commenced, to the great damage, &c. and against the peace, &c. [128] The fifth count (a) charged that the defendant, for his own corrupt advantage, unlawfully, wilfully, and corruptly, did attempt to extort and procure from R. and W. Allen 104, by threatening them that a prosecution should be com"menced against them," under and by virtue of the statutes in that case made, for having sold a certain medicine, viz. Fryar's Balsam, without a stamp, unless they should pay 10. for the purpose of preventing such prosecution from taking place; with intent to gain corrupt advantage to him. self, to the great vexation and oppression of the subject;' and thereby to bring the laws for the support and protection of the revenue into hatred and disrepute, &c. and against the peace, &c. The sixth count was for threatening the Allens that they should be prosecuted, under the statutes in that case made, for having sold medicines without stamps, (a) This and the subsequent counts varied from the fourth, in not stating the letter. 1805.. The KING against with intent to obtain and extort money from them, under pretence of putting a stop to such prosecution, against the peace, &c. There were other similar counts, for threatening other persons in the same manner and with the like SoUTHERTON, intent. The fourteenth count stated, That the defendant, with intent to abuse the revenue laws, &c. (as before) and without any purpose of causing the same to be carried into legal execution for the public good, unlawfully, &c. "threat-ened R. Pratchett with the prosecution of an information against him, for selling certain medicines without stamps," with intent to extort money from him, to induce the defendant to prevent any such prosecution from being commenced against the said R. P. and to procure corrupt gains to himself, to the great oppression, &c. and against the peace, &c. The fifteenth count contained the same allegations as the last; and added further, That the defendant then and there unlawfully received from R. Pratchett 107. for the purpose of preventing such prosecution from being commenced against him, to the great oppression of the subject, &c. and against the peace, &c. None of the counts concluded against the statute. Burrough, in Michaelmas Term last, moved to arrest the judgment, observing, That if the indictment were supportable at all, it must be so upon the principle laid down in Rex v. Scofield (a), That an attempt by any act done to commit a misdemeanor, though not completed, is itself a misdemeanor. That the offence imputed in the fourth count of this indictment is the sending a threatening letter; and in the other counts, generally threatening certain persons with a prosecution, to recover penalties for certain supposed offences against a penal law, in order to extort money from them for staying the prosecution. But, 1st, Such a threat constitutes no offence at common law, being merely nugatory. 2dly, In order to make such an attempt at Extortion (as it is called) an offence, it must at least be shewn to be a threat to prosecute for something which, if done by the party threatened, would be a prosecutable offence by some law; whereas the charge threatened, of prosecuting for selling medicines without a stamp, is not a sufficient description (a) Cald. 39%, 403. [ 19 ] of 1805. The KING against of the offence within the stat. 42 Geo. 3, c. 56, creating the duty, the evasion of which was imputed by the threat; for sec. 2 imposes the duty generally, and ascertains the rate of SOUTHERTON. it. Sec. 7 requires the commissioners of stamps to provide the necessary stamps. Sec. 10 requires the vendors of such medicines to apply to the commissioners for paper-covers, wrappers, or labels, to be affixed to the medicines. Sec. 11 requires the commissioners to print on the said paper-covers, wrappers, or labels, some mark or words, to denote the duties, which shall be delivered to the vendors; and that such covers, wrappers, or labels, shall be fixed on such medicines before they are exposed to sale; and then sec. 12 gives a penalty of 101. against the vendors of such medicines, without having proper covers, wrappers, or labels fixed to them. That therefore is the offence created by the act. Again :The act does not require a stamped label for all medicines ; but for such only as are described in the 19th section, which refers to a schedule at the end of the act, describing the different medicines by name. The counts then, all but one, which charges a threat of prosecution for selling Fryar's Balsam (one of the medicines named in the schedule) are defective, in not shewing that the medicines charged to be [130] sold were such as required stamped labels; and that one count is open to the objection, that the offence is not laid to be against the statute, and to the other general objections mentioned. 3dly, As every person must be presumed to know the law, and as the stat. 43 Geo. 3, c. 73 (which gives a new schedule, and incorporates it with the former act) prohibits (s. 4) any person, except the Attorney General, and the officers authorized by the commissioners of stamps to sue for penalties under that act, the parties threatened must have known that it was not in the power of the defendant, either to have instituted or relinquished any prosecution against them, even if they had been guilty of any offence within the law, which they are not alleged to have been; and therefore that he could not by possibility have executed his threat. The Attorney General was heard against the rule on the last day but one of last term; but for want of time, the case was ordered to stand over for further argument till this term. The 1805. The KING against The Court then expressed great doubt, whether the sort of threat contained in the letter, stated in the 4th count, and stated generally in the other counts, were such as was indictable at common law, being no more than a threat to SOUTHERTON. bring an action of debt, for penalties under a statute, which a firm man might well be presumed to resist. They desired, therefore, that the case might be argued on this general principle and observed further, That the indictment was not framed on the stat. 18 Eliz. c. 5, s. 4, which goes the length of prohibiting, under certain penalties and disabili ties, any person, either under colour or pretence of process, or without process, upon colour or pretence of any matter of [131] offence against any penal law, from taking any money or reward, or promise of reward, without consent of Court. Nor was it framed on the stat. 30 Geo. 2, c. 24, which makes the sending of any letter, threatening to accuse any person of any crime, punishable by law with death, transportation, pillory, or other infamous punishment, with intent to extort or gain money, &c. an offence: and they asked, Whether, before the last-mentioned statute, there were any case in the books of an indictment at common law for such a threat, even where money was obtained, unless where the threat were of personal violence, or calculated to create such fear as might be supposed to operate in constantem virum, so as to constitute robbery, or unless the offence were laid in conspiracy. They also noticed, that the several counts alleged, That the threat was made with intent to extort money; but that es tortion meant, properly, the illegal obtaining of money from/ another, under pretence of right. The Attorney General, Gibbs, Lens, Serjt. and Dampier, shewed cause against the rule in this term. The indictment is founded on the assumption, that the threatening to put in force a penal statute, not for the purpose of convicting and bringing the offender to justice, and thereby to obtain the penalty for the informer and the Crown, but merely for the party's own private purpose, illicitly to obtain money for not enforcing the law, is an indictable offence at common law; being an attempt to procure money by such means as, were the money procured by the means threatened, would clearly be a misdemeanor within the stat. 18 Eliz. c. 5, if not also at common law. The 15th count indeed alleges, That the VOL. VI. H money |