
    Means vs. Frame.
    Motion.
    [Mr. Hanson for plaintiff: Mr. Apperson and Mr. Menifee for defendant.]
    From the Circuit Court for Montgomery County.
    
      October 17.
    The fee of a justice of the peace for a copy of a record, is 1½ cts. for every twenty words—by the act of 1819 (S. L. 694,) which denounces a penalty of $15, for charging, or taking, a larger fee and by which the act of 1806 (S. L. 890,) which allowed 50 cents for a copy, is repealed.
    A statement of the charge for a copy of a justice’s record, at the foot of it, signed by him, is a fee bill, within the meaning of the act of ’98 (S. L. 386, § 14.)
    The limitation to a suit for the penalty for an improper charge in a fee bill, is 5 years from the time the fee bill is taken in.
    The plaintiff in a penal suit must show that it was instituted within the time limited.
   Chief Justice Robertson

delivered the opinion of the Court.

This writ of error is brought to reverse a judgment for forty five dollars, on a motion against the plaintiff in error, for charging and receiving, as a justice of the peace, fifty cents each, for official copies of three several records, for the copying of which the fee of one and a half cents for each twenty words, allowed by the act of 1819, (1 Stat. Law, 694,) was less than fifty cents for each copy.

The said act of 1819 denounces a penalty of fifteen dollars, for charging or receiving a larger fee than that which it prescribes.

And two questions are presented for consideration: first—is the act of 1806, (2 Stat. Law, 890,) allowing a fee of fifty cents to a justice of the peace, for the copy of a record, constructively repealed by the act of 1819, prescribing a different rate of compensation? and, second— is the act of 1796, (2 Stat. Law, 1139,) limiting, to one year, suits for penalties, repealed so far as this case is concerned, by the act of 1823, (Ib. 1148,) extending to hive years, the limitation of suits for illegal charges made in the fee bills of justices and some other civil officers?

First. As the act of 1819 prescribes a rate of charge altogether different from that fixed by the act of 1806, the latter act must necessarily be considered as repealed.

Second. Though the act of 1823 literally applies only to illegal charges made in fee bills, nevertheless, in our judgment, it embraces this case, because the charge of fifty cents for the copy of each record, was made explicitly in writing, at the bottom of each copy, and was subscribed and certified by the Justice, as his legal fee; and therefore each charge seems to have been made in a fee bill, as defined by the fourteenth section of an act of 1798, (1 Stat. Law, 386.)

Wherefore, though a plaintiff in a penal suit must show that it was instituted within the time limited by statute, yet, as the notice of the motion in this case was served within less than five years after the payment of the fees, and as the limitation in such a case of illegal charge, made in a fee bill, is in our opinion, five years, and not one year, the judgment of the Circuit Court must be affirmed.  