
    Prior against Craig.
    
      Monday, January 4.
    In a suit against a magistrate, to re cover the penalty of $50 imposed by the 6th section o 1814, for taking illegal fees brought be fore another magistrate, previous notice agreeably to the act of 21st March, 1772, is necessary.
    In Error.
    ERROR to the Court of Common Pleas of Northamption county.
    This was an action of debt, brought before a justice of the peace of Northampton county, by John Prior against Thomas Craig, a justice of the peace of that county, to recover the penalty of § 50, imposed by the 6tb section of the act of as sembly, passed the 28th March, 1814, (Purd. Dig. 223.) on any officer who should demand and receive illegal fees, 
       and was removed by appeal into the Court of Common Pleas. On the trial in the Court below, after the plaintiff had gone through his evidence, the defendant objected, that as no notice had been given to him previous to the commencement of the action, agreeably to the 1st section of the act of 21st March, 1772. (Purd. Dig. 351.)  the plaintiff could not sustain his action.- The Court gave it as their opinion, that such previous notice was necessary, and, therefore, directed the jury to find a verdict for the defendant, which was accordingly done. The defendant excepted to the Court’s opinion. ■
    Scott, for the plaintiff in error,
    submitted, that notice was not necessary. The question turned upon the two acts of assembly, the fee bill of 1814, and the act of 21st March, 1772.
    1. The act of 1814, is silent on the subject of notice. The penalties imposed by the 26th section, are common to every kind of officer. And it cannot be supposed, that the legislature intended a notice to justices of the peace, when such notice is clearly not necessary as to other officers, who are placed on the same footing with justices. If any exception had been contemplated, it would have been mentioned. It was the object of the legislature to give every citizen, who was injured by the misconduct of an officer, a speedy and easy remedy; whereas the notice is attended with delay to the suitor, and is difficult to manage with accuracy and precision.
    2. The case is not within the purview of the act of 1772. The preamble recites, that “ justices of the peace, may be discouraged in the execution of their office, by vexatious actions brought against them, for or by reason of small and involuntary errors in their proceedings.” An action for a penalty of $ 50 for taking illegal fees, cannot be called vexatious ; nor is taking an illegal fee, a small or involuntary error ; neither is it an act done in the execution of the defendant’s office. It was an illegal exaction by him as an individual, without authority or colour of law. This act contemplates only suits in a Court of record; and proceedings to recover the penalty before a justice, are not within its provisions. Thus in the 2d section, it enables the justice to plead a tender in bar j but there is no special pleading before a justice. It also contemplates a proceeding in which a jury are to take a part; but there is no jury summoned before a justice. The act of 1772, cannot be extended to causes of action afterwards given by statute. Rex v. Gaul.
      
       If the case be considered as within the act of 1772, then he contended, that this act was impliedly repealed in this point by the act of 1814.
    
      
      Rawle, contra,
    cited Adams v. Wood,
      
       as overruling the principle of Rex v. Gaul. He then observed, that many duties had been imposed on justices, since the act of 1772, and it was reasonable, that they should have the protection of that law. In Cook v. Beatty,
      
       it was held, that a justice marrying an infant without consent, was within this act, though the law inflicting.the penalty on such justice, was passed in 1792.
    
    The mention of pleading in bar in the act of 1772, is no “reason that it is not applicable to a suit before a justice, because the party may plead in bar before a justice. As to the jury, the right they had is transferred to the justice. The notice to be given to the justice, is construed by our Courts, more liberally than by the English Courts ; as appears by the case of Mitchell v. Cogill. 
      
    
    
      
       Which section is as follows:
      Sect. XXVI. If any officer whatsoever, shall take greater or other fees than is herein before expressed, and limited for any service to be done by him, after the first day of September next, in his office* or if any officer shall charge or demand, and take any of the fees herein before ascertained, where the business for which such fees are chargeable, shall not have been actually done and performed; or if any officer shall charge or demand any fee for any service or services, other than those expressly provided for by this act, such officer shall forfeit and pay to the party injured, fifty dollars, to be recovered as debts of the same amount are recoverable; and if the Judges of any Court within this Commonwealth, shall allow any officer, under any pretence whatsoever, any fees under the denomination of compensatory fees, for any services not specified in this act, or some other act of assembly, it shall be considered a misdemeanor in office.
    
    
      
       Sect. I. No writ shall be sued out against, nor any copy of any process at the suit of a subject, shall be served on any justice of the peace, for any thing done by him in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the party, his attorney, or agent, who intends to sue, or cause the same to he sued out or served, at least thirty days before the sueing-out, or serving the same; in which notice shall be clearly and explicitly contained the cause of action which the ¿aid party hath, or claimeth to have, against such justice of the peace; on the back of which notice shall be indorsed, the name of such attorney or agent, together with the place of his abode, who shall be entitled to the fee of twenty shillings for the preparing and serving such notice, and no more.
    
    
      
       1 Salk. 372.
    
    
      
      а) 2 Cranch. 336.
    
    
      
       1 Sm. Laws, 336.
    
    
      
      
         4 Binn. 20.
    
   The opinion of the Court was delivered by

Gibson J.

There can be no pretence that the act of 1814, on which this action is founded, was intended to dispense with any provision of the act of 1772. It is true, the legislature did not mean to give a particular exemption to any class of officers embraced by the fee-bill; but it did not mean to take away any protection before enjoyed: it left the matter as it found it. The act of 1772 is a remedial law, general in its provisions, and not confined to actions that might arise under the laws existing at the time of its enactment: it is beneficial, and therefore not to be restrained^ but by express wordsj or strong and necessary implication. It was intended for all cases where a justice of the peace, acting within his jurisdiction, rendered himself amenable for a wrong; and although the policy of the act may have been to secure, in some measure, the officer bound to act, and therefore in danger of going wrong, from the legal consequences of unintentional, error; yet as it is, in many instances, impossible to distinguish errors of the head, from those of the heart, its provisions must of necessity be extended to every case of official misconduct, made the subject of an action. In fact, there is no law on our statute book, more obscure in its terms, than that under which this penalty arises, and none against whiih an officer might more readily offend unwittingly, There is no force in the objection, that the notice was intended to be preparatory only, to a suit in the Courts of common law. What reason is there, why the officer should not have the same protection as to a suit to be commenced before a justice of the peace? Not because he stands abetter chance of justice, or has a more dispassionate or able investigation of the merits of his defence, in a hearing before the latter. The reasonableness of the provision applies, to say the least, with equal force to both tribunals; perhaps with peculiar force to that of the justice. But it is said, the phraseology of the act of 1772, indicates a trial of the merits before a tribunal, of which a jury is an essential part, as the jury are to judge of the reasonableness of the amends tendered; and it also said, that pleading in bar of the action is spoken of; which is not in use before a justice. Doubtless the legislature did not contemplate a suit before a justice, against a-brother justice, as the limit of the jurisdiction then stood; but the vast extension of the jurisdiction since that period, has brought within its compass, at least a moiety of the legal business that before belonged to the Courts of common law. The argument might possibly have force, on a question of the justice having jurisdiction at all of this cause of action, if it were not expressly given; but it is without weight here. In all cases, the justice, or arbitrators acting by his, or the parties, appointment, exercise the functions of a Court and jury, and take their place by a legislative substitution ; and the parties may plead specially before this tribunal if they please. As to the inconvenience arising from the special manner in which the notice must be drawn, it is sufficient that the act contemplates the employment of counsel for that purpose, and provides a compensation for it j so that the plaintiff may be as well secured from being entangled in form before the one tribunal as the other. This is in nowise inconsistent with the policy of the one hundred dollar act, by which jurisdiction is given in this case, and which it is said, was intended to permit every man to be his own lawyer : that permission was before enjoyed in the most ample manner. As respects thisjcause of action, the matter stands, as to a suit before the justice, just as it does as to a suit in Court: the plaintiff may resort to counsel to draw his notice, or, if he chooses to take the risque, he may frame it himself. Then, it is said, notice was, at all events unnecessary in this instance, as the mere receipt of the fees was not an official act, but an illegal charge, by the defendant in his individual capacity, for a service rendered in his official character. It is sufficient to observe, the suit is brought against the defendant as an officer; his official character being its very foundation, and without which, the wrong complained of could not be committed. As an officer, only, could he demand fees, and of course in that character only, could he receive them. He may compel payment of his fees by an execution, which is an official act. The action is brought for a penalty which the law inflicts on the officer, who must be declared against as such. It is true, an action of assumpsit to recover back fees illegally taken, may be sustained against a justice, without giving hint notice ; for the plaintiff thereby waves the official tort, as he may well do, and goes only for the money actually extorted ; but when he goes for a penalty, or damages for a tort, the case is altogether different. Where the justice goes beyond his jurisdiction, he cannot assume an official character, or claim its privileges; but for every act done within his jurisdiction, and by colour of his office, he is entitled to notice, before a suit can be sustained; and this, we are of opinion, is the true construction of the different laws on the subject.

Judgment affirmed.  