
    Curry against Carrol.
    In an action against a justice of the peace for taking illegal fees, if it appear that he charged and received a greater sum for a specified item of service than he was entitled to, it will not he compensated by his omission to- charge as much as he was entitled to for another item of service.
    ERROR to the common pleas of Alleghany county.
    William Carrol against Robert Curry, a justice of the peace. Action for taking illegal fees.
    In a suit pending before the justice against William Carrol, a judgment was entered for the debt and costs, which the defendant paid. The items of costs received by the justice were set out upon his docket; and among them was a charge of 18 cents for swearing six witnesses.
    The allegation by the plaintiff in this case was, that but four witnesses were sworn; and he gave notice to the justice, such as the act of assembly requires, and instituted this action for the penalty.
    The proof was, that there were not six witnesses sworn by the justice; and the defendant made defence upon two grounds. First, that the aggregate amount of costs received by him was not more than he was entitled to ; and, secondly, that if the jury believed the enormous charge was made by mistake they might find for the defendant.
    
      Dallas, President, charged the jury that neither ground was available, and directed a verdict for the plaintiff.
    
      
      Stewart and Lowrie, for plaintiff in error.
    
      Metcalf, for defendant in error.
   Per Curiam.

The defence attempted rests on the imputation of mistake; for it will not be pretended that a wilful overcharge in one item may be compensated by an undercharge, or an omission to charge, in another^ where a bill is rendered at the time, the fees are paid and received separately, according to the items. The object of the legislature in establishing specific fees, and requiring a table of them to be set up in the office, was to let the suitor know distinctly the services charged, and whether he were imposed on. Where, however, the bill is rendered subsequently, being the declaration of the justice, it shows exactly how, and in what proportions, the aggregate was received. If there were other subjects of charge forgotten by him, they will not justify an overcharge in those that were remembered; and if too much was taken by mistake, he had an opportunity to restore it on the reception of notice. Having persisted in his pretension, he is entitled to no protection which is not consistent with a strict construction of the law.

Judgment affirmed.  