
    Orton v. Engledow.
    "The petition in an action under the 20th section of the act of 1848, regulating fees of office for demanding and receiving “any other or higher fees than are prescribed in that act for any of the services therein mentioned,” must, state the services for which the '‘other or higher” fees wore demanded and received; otherwise it will be bad in arrest of a judgment by default. (Note 47.)
    
      A person from whom illegal fees have been demanded and received in his capacity as administrator cannot maintain an action in his personal capacity either for the penalty or to recover back the amount paid.
    Error from Nacogdoches. This action was brought by the appellee to recover of the appellant, as chief justice of the county of Nacogdoches, the penalty denounced by the 20th section of the act of 1848 “regulating fees of office.”
    The petition alleged that on the — day of-, 1850, the plaintiff was ad-ministratrix of the estate of John Engledow, deceased; that she then made a final settlement of her administration in the County Court; that the defendant, as chief justice of the county, did demand and receive of the plaintiff, administratrix as aforesaid, the sum of one hundred and nine dollars “as commissions on the property of the estate of said John Engledow, deceased;” that the same was so received as “commissions on the property of said estate, and not upon actual cash receipts belonging to said estate;” that the demand and receipt of said sum being illegal aud “against the statute in such cas'es made and provided, a right of action has accrued” to the plaintiff for fourfold the said sum of money, to wit, “for the sum of four hundred and thirty-six dollars,” concluding with a prayer for judgment, &e.
    The defendant failing to answer within the time prescribed, judgment by default was taken against him, and a writ of inquiry awarded. There was a motion made to set aside the judgment by default, which the court overruled. There was a verdict for the plaintiff, whereupon the defendant moved for a new trial, which the court refused. He then moved in arrest of judgment, on the ground that the plaintiff was not entitled to judgment upon the averments of her petition. This motion the court overruled and gave judgment on the verdict, and the defendant brought a writ of error.
    
      li. 8. Walker, for plaintiff in error.
    I. The motion in arrest of judgment should have been sustained. Judgment having gone by default, objections which would have been good on demurrer were good in arrest of judgment. The petition does not state for what services the defendant demanded aud received “ other or higher fees ” than are allowed by the foe bill.! “The declaration must show for what services the officer has charged excessively.” (Aeehternacht v. Watinough, 8 Watts. & Serg., 1(32.) “The fee bill is a peual statute.” (Ib.)
    II. The petition does not show anjT right in the plaintiff to recover in her individual capacity or for her own benefit.
    
      8. M. Hyde, for defendant in error.
    This suit was brought under the 20th section of'the act of 1S4S, regulating-fees of office. Tlic fees and commissions of the chief justice are regulated by the 7th section of said act. The 20th section of the above act is the same as the provision iu the statute of Elizabeth, which provided that for extortion by color of his office the sheriff should he liable to an action for treble damages at the suit of the party aggrieved, except that in this case the officer is the chief justice, and instead of treble damages, he is liable to pay the party aggrieved fourfold the fees and commissions so unlawfully demanded and received. When it is established that the chief justice has demanded and received a certain amount of fees and commissions more or higher than lie is allowed by tile statute, then he is liable to pay the party aggrieved fourfold that amount, whatever it may he. The court and jury have no discretion; it must bo fourfold the amount so proved to have been illegally demanded aud received. The chief justice has the right to charge and receive the one-half of one per cent, as commissions upon tile actual cash receipts in the exhibits, accounts, &c., of the administratrix, but not commissions on the appraised valuation of the property of an estate, or anything else but actual cash receipts.
   Wheelee,, J.

Of the errors assigned it will be necessary to notice only that which brings in question the overruling of the motion in arrest of judgment.

Note 47. — The State v. Williams, post, 206.

The provision of the statute upon which this suit is founded is, “that if any of the officers herein named shall demand and receive any other or higher fees than prescribed in this act for any of the services herein mentioned he shall be liable to the party aggrieved for fourfold the fees so unlawfully demanded and received.” &c. (Hart. Dig., art. 1376.) The offense upon commission of which the liability is incurred consists in demanding and receiving “other and higher fees than are prescribed in this act for any of the services herein mentioned.” But the money received in this case is not alleged to have been and it is shown that it was not received for any of the services mentioned in the act. The receipt of the money therefore, though unauthorized, did not constitute the offense created by the statute. The essential ingredient that it be received for some one of the services mentioned in the statute was wanting. The statute is penal aud must be construed strictly.

The estate was not subject to the payment of this money by any law in force at the time. An action would doubtless lie in behalf of the estate to recover it back. But this action is brought by the plaintiff in her own right. She alleges that she paid the money as administratrix; and she now brings an action to recover it back in her own right. She paid not her own money but that of the estate. If permitted to maintain this action she would be enabled by the judgment of the court to convert and appropriate the money so paid to her own use.

The facts alleged in the petition do not constitute a case within the provision of the statute. The defendant did not incur the penal consequences denounced by it, and consequently the action cannot be maintained to recover the penalty consequent upon an infraction of its provisions.

Nor does the petition disclose a right of action in the plaintiff to recover back the money paid. On the contrary the facts averred are inconsistent with the existence of any right of action in the plaintiff.

The objections to the petition go to the right of action, and were well taken by motion in arrest of judgment.

The judgment must be reversed and the case dismissed.

Reversed and dismissed.  