
    [Philadelphia,
    December 26, 1827.]
    COATES against WALLACE.
    
      IN ERROR.
    
    Notice to a justice of the peace of the cause of'-action, in a suit for the penalty of fifty dollars, for taking, more than the legal fees, need not specify what fees he was entitled to receive.
    Where a justice of the peace binds over a defendant and his surety, he can only charge a fee for one recognisance. The same rule applies to ,a prosecutor and his witnesses. '■
    No more than twelve cents and a.half can be charged by a magistrate as a fee for settling an assault and battery. -
    A justice of the peace incurs the penalty of the act by demanding and receiving illegal fees, though it is done by mistake or ignorance and without any corrupt intent.
    Error to the Court of Common Pleas of Philadelphia county i This was an action of debt by Samuel Wallace, brought against Thomas Coates, jr. Esq., a justice of the peace of Philadelphia county, to recover-the penalty of fifty dollars, given by the 26‘th section of the act of assembly of the 28th of March, 1814, for taking illegal fees. Samuel Wallace, the plaintiff below, was bound in a recognisance by the justice, after a hearing before him on the 31st of January, 1S25, to appear at the next Court of Quarter Sessions, for an assault and battery on one Whelslone. The surety or bail of Wallace, was also bound at the same time, to answer for his appearance, and the prosecutor Whetstone, and a witness for the prosecution, were likewise bound to appear to prosecute and testify.
    On the docket of the magistrate, the entry of the recognisances was as follows:—
    
      “ Samuel Wallace, tent, in @200.
    
      “John Fraser, tent, in @200, for appearance of defendant.
    
      iiMraham Whetstone, -tentin @50, to testify.
    
      Frederick Stock, tent in @50, to do.”
    The prosecutor and Wallace, subsequently agreed to discontinue or settle the suit, before it was returned by the magistrate to court,, and that Wallace should pay all the costs. The justice charged' two dollars and fifty-eight cents costs, whieh were paid by Wallace, and whieh he alleged were illegal. It was to recover thepenalty. for taking these costs that this suit was-brought.
    . Thirty days before the commencement of the suit, (which was originally instituted before a justice,of the .peace,) the following' notice'was served on Coates: - .
    “To Thomas Coates,Jr. Esq. one of the justices of the peace of Philadelphia county: " .
    “Sir,
    “ According to the provisions of the act of assembly, I hereby give you notice that I shall, as the attorney of Samuel Wallace, commence an action of debt against you at the expiration-of thirty days from this time. • The cause of action which the Said party has or claims against you, is as follows: .The said Samuel Wallace being bound over' to keep the peace before you as a justice of the peace,.by-:— Whetstone, in the name of the commonwealth of Pennsylvania, you received upon the settlement of the case betweeen the parties, from the said Samuel Wallace, illegal fees; to wit, the sum of two dollars and .eighteen cents, which with forty cents previously paid by the said Samuel Wallace, in the said suit, amounted 'in the whole to two dollars and fifty-éight cents: which said costs or fees of two dollars and eighteen cents and forty cents, are illegal and exceed the amount of fees which aldermen and justices of the peace are permitted to receive by the act of assembly, of the 22nd of February, 1821; whereby you have forfeited to the said Samuel Wallace, the party injured, the sum of fifty" dollars, according to the twenty-sixth section of the act of assembly of the 28th of March, 1814, and which said section is re-enacted by the act of assembly of the 22nd of February, 1821-, and is as follows:.—
    il Sect. 26th. And be it further enacted by the authority aforesaid, that if any officer whatsoever, shall take greater or other fees than is Kerein-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.
    Your obedient servant,
    
      “ February 21st, 1825. ISAAC NORRIS.”
    The notice was endorsed:
    
      “ Notice to Thomas Coates, jr., Esq. — Isaac Norris, attorney for Samuel Wallace: place of abode, Chesnut Street, north side, first door above Tenth Street. Office No. 55 south Seventh Street, second door below George Street, Philadelphia.”
    
    On the trial of the cause below, the court declared that the notice was sufficient, which was excepted to by the defendant’s counsel.
    The defendant’s counsel then requested the court below to charge the jury on the following points:
    1. That Coates, the defendant below, was entitled in the action before him, as a justice of the peace, to four fees, of twenty cents each, for four recognisances; viz. one for the prosecutor, Whetstone — one for Stock, the witness for the prosecution — one for Wallace, the defendant before Coates, and owe for Fraser, the surety or bail of Wallace, for his appearance át the next court.
    2. That Coates was entitled in the action before him, to a fee of twenty-five cents, by the act of assembly of the 17th of March, 1806, sec. 1, for discontinuing and settling the assault and battery suit, by consent of the parties, although no agreement was signed in the docket of the justice by the parties or either of them.
    2, That Coates was not liable to the penalty for taking illegal fees in the action before him, because he took them through mistake or inadvertence, or misconception, of the fee bill, and in the absence of a wilful and corrupt intent.
    
    4. That Coates was not liable to the said penalty of fifty dollars, inasmuch as the fees were paid to him by an agreement of the parties for a settlement or discontinuance of the suit before him.
    The court below charged the jury as follows:—
    1. That as the hearing of the parties and witness, and the binding over before the justice took place at one and the same time, Coates was only entitled at most to two fees of twenty cents each, for two recognisances; viz. one fee of twenty cents for one recognisance of the prosecutor and his witness or witnesses, and one fee of twenty cents' for one recognisance of the'defendant before him and his surety or bail.
    2. That the act of assembly of the 17th of March, 1806, was repealed so far as respects the fee receivable on the settlement of an assault and battery suit, by the fee bill act of the 22nd of February, 1821, and that the justice consequently was only entitled to twelve and a half cents, being the fee iifor entering discontinuance in a case of assault and battery,” given by the fee bill act last mentioned.
    3. That in a civil.action fon the penalty,’ the justice was liable, whether he took the excess of fees through mistake, or inadvertence, or misconception, of the fee bill, or whether he took them wilfully and corruptly.
    4. That it was immaterial whether the fees were paid by an agreement' of the parties for a settlement or. discontinuance of the suit or not; as such an agreement.of the parties for a compromise,, could only mean an agreement to pay the legal fees to the magis.trate.
    
      Fówle and Mahany, for the plaintiff !in error,
    contended, that the notice was insufficient, as it did not specify what amount of fees the justice should have taken, arid this should have been explicitly specified, as-it was the cause of action,• and the justice, could have tendered the excess of -fees, as amends. Its omission prevented him from doing so. Purd. Dig. tit. Justice of the Peace. According to this notice, Coates was entitled to no fees at all, as it says, the whole axe illegal. The transcript of the justice sets out the items, and it is admitted, that he is entitled to some of them. A notice should specify the wrong done by the officer— here the wrong complained of is the taking the excess, of the legal amount of fees. Of this wrong, the justice has no notice. It is, therefore defective. Mitchell v. Cowgill, 4 Binn. 25. Little v. Toland, 6 Binn. 85. Slocum v. Perkins, 3 Serg. & Rawle,. 295. Prior v. Craig, 5 Serg, & Rawle, 46. Jones v. Hughes, 5 Serg. & Rawle, 299. Lake v. Shaw, 5 Serg. & Rawle, 518.
    1, On the first poin.t, they said, that the practice of magistrates is universal, to take a recognisance for each person. (Judge Rogers here remarked, that there was a very general belief, that magistrates were in the practice of taking much greater fees than the law allows them.) If the services are performed at different times, as where there are several postponements, is the justice only entitled to the fees for two recognisances? The services may be rendered at different times, as if the case is postponed, a recognisance must be taken for the reappearance of the, parties and witnesses,as they would not be bound to attend. Suppose an action brought on a forfeited recognisance against a-witness or a party for not appearing, he could plead that it was a joint recognisance, and thus defeat’ the suit, if the opposite doctrine, prevails. They cited 4 Black. Com. 262. Fee Bill Acts of 1795, 1814 and 1821, and The Commonwealth v. Emery, 2 Binn. 431.
    2. The act of 1806, giving twenty-five cents for settling an assault and battery suit, is not repealed. The act of 1821 gives twelve and a half cents for entering discontinuance. Now a discontinuance is the act of one party, but á settlement is the act of both. When the justice acts as a mediator, and gives his advice,' and the parties agree to dismiss the suit, if, is a settlement, and he is entitled to a larger fee than when one party only comes and discontinues it of his own accord. 3 Black. Com, 296. Jacob’s Law Dict. tit. Discontinuance (of Process.)
    
    
      3. The counsel for the plaintiff in error, on this point, merely-referred to Respublica v. Hannum, 1 Yeates, 71. Rex v. Young, 1 Burrows, 561. The King v. Borran, 3 Barn. & Ald. 432.
    4. They did not argue the fourth point.
    
      I. Norris and Norris for the defendant in error.
    „• The notice is sufficient and precise. The act requires notice to be given, that the justice may know the cause of complaint, may reflect on it, and may have an opportunity of tendering amends. Under this notice, he has all these. To inform him of the items in which there is an overcharge, would not benefit him, as the cause of action, taking illegal fees, could not be. more clearly and explicitly stated. Besides, an aggregate sum was.demanded, and it would be impossible for the party to . ascertain h.ow the justice would apportion it. . In many cases, it is impossible for the party to know on what items the excess of fees is charged. The magis-r trate is a public officer, and the law presumes, that he .knows the fee bill; he is bound by law to have it hung upjn his office. • We are not bound to tax it for him. He takes his fees at. his peril. The aggregate amount of fees paid, exceeds the aggregate that he should have received; and therefore, the aggregate amount received is illegal. The legality or illegality of the .aggregate is the very gist of the action. Substantial notice of every thing is given to him. The fee bill consists of an infinite number of items, and if the law requires a notice that -shall specify each, which is legal and which is not, and how much is the excess; it will- be almost impossible to draught one. It would be a judicial repeal of the salutary provisions of the act. They cited 4 Binn. 25. 6 Binn. 87. 2 Serg. & Rawle, 235. 5 Serg. & Rawle, 46, 299, 518. Bates v. Shaw, 13 Serg, & Rawle, 493. Miller v. Smith, 12 Serg. & Rawle, 147, — where the court say they will not construe the statute requiring notice with so much strictness and technicality, as to defeat these actions. Substantial notice of the .cause of action is only necessary.
    1. The practice to charge a fee for a recognisance for every person before the magistrate, is á vicious one, and one sub silentio. Two recognisances for all parties, and' witnesses; will answer as well as one for each..' The language of the act, “ taking recognisance in any criminal case, and, returning the same to court,’’ is not to be construed to impose a heavy burden,on a party, merely to enrich the magistrate’s pocket. If there were fifteen or twenty witnesses, as frequently happens,, the expense would be enormous, without any benefit to the party, and that too, where, in point of faet, the magistrate only nominally .performs the services. The Commonwealth v. Emery, 2 Binn. 434. They referred to the analogous cases of the attorney general .being required.to indict all parties concerned jointly, and where a number of persons are charged in' the- indictment, the costs are to be taxed as if on.e person only was indicted, to diminish costs: to ejectment cases, where persons are in possession, not named in .the writ, and the sheriff is bound to return, and the prothonotary to enter them as defendants; to cases settled with leave of the court before bill found, the fee of the attorney general is less than after — to subpoenas, where all names must be put in one — in ail these cases, the legislature has clearly shown the spirit of construction that should govern this court — that an officer is. not necessarily to multiply his official services, for the sole purpose of augmenting his costs. Irwin v. Commissioners, 1 Serg. & Rawle, 506, 7. Ramsey v. Alexander, 5 Serg. 4 Rawle, 348.
    2. They referred to Pray v. Bussier, 7 Serg & Rawle, 447. Prior v. Craig, 5 Serg. 4 Rawle, 44, and The Commonwealth v. Evans, 13 Serg. & Rawle, 449, without argument.
   Thd opinion of the court was delivered by

Gibson, C. J.

It is objected, that the items on which it' is supposed there has been an overcharge, ought to have been specified in the notice.. This would require more to be done by the injured party, than might be in his power. He has paid a gro.ss sum, and may not have known how the justice intended to apportion it to the services. He might, it is true, have demanded a bill of costs, which would have shown the particular charges; but the justice might have refused it, and vye are not to, take for granted," that he would certainly have done his duty in this particular, for the very action is founded on the supposition of his being a wrongdoer. But waving all this, the notice is specific enough for every purpose of convenience, and the legislature never intended to re-, quire more. The justice was apprized of the sum, and the occasion on which it is alleged' to have been extorted; and this is sufficient to enable him to judge of the extent of the injury, and the propriety of tendering amends. All beyond this, lay more in the knowledge of. the justice, than any-one else: .and to exact more, would involve the injured party in a labyrinth of subtleties, which the legislature never intended to encourage.

The justice claims a right to charge the costs of a separate recognisance for each person bound, whether all. might have been included in one recognisance or not. There is no provision in the act of assembly particularly applicable to this part of the case; but analogous instances are not wanting, in which the legislature has evinced a general repugnance to the multiplying of official services, for the purpose of enhancing the costs.

It has thought proper to require a party to include the names of all his witnesses in one subpoena; and where a number are .accused of one offence, the Attorney General is required. to indict them jointly.' There may be other instances which do riot at present occur to me. Now in a matter which is-altogether open to construction, we are to be governed implicitly by the spirit of legislation, evinced in parallel cases; and the more so, where this spirit has a decisively salutary tendency. Nothing is more liable to abuse than the right'which the law gives to' compensation for official services, and nothing requires to be more strictly guarded. To allow compensation for services which cost no trouble, having been rendered only theoretically, would be palpably unjust. The item of twenty-five cents for compromising the assault and battery, is manifestly wrong, the act of 1822 having reduced the former allowance to twelve and a half cents.

The penalty imposdd by this act may be incurred by exacting fees, which are supposed at the time to be legally demandable. By the very words of the prohibitory clause, the taking is the gist of the offence. Ignorance of the law will not excuse in any case; arid this principle is applicable,and with irresistible force, to the case of an officer selected for his capacity, and .in whom ignorarice is unpardonable. The very acceptance of thé office carries with it an assertion of a sufficient share of intelligence to enable the party to follow a guide provided for him, with an unusual attention to clearness and precision. On any other principle, a conviction would seldom take place, even in cases of the most flagrant abuse; for pretexts would never be wanting. Sound policy, therefore, requires that the officer should be held to act at his peril, and we are of opinion, that the absence of a corrupt motive, or the existence of an agreement by the party injured, furnishes no justification for doing what the law forbids.

Tod, J.

I concur with the Chief Justice most fully, for the reasons he has given, on all the points except one; that of the recognisances.

It was of the strictest and severest law to hold that Coates, the justice, was liable to the penalty,' for a mistake, in supposing that the fee of tvyenty-five cents, given by the act of the 17th of March, 1806, was hot taken away afterwards by an implied repeal only. Nevertheless, it was law.

* But when the court below charged the jury that the justice was entitled to but one fee of twenty cents for one recognisance of the defendant and his surety, and one fee of twenty cents for one recognisance of the prosecutor and his witness; that, is, that the justice had no authority to take separate recognisances from the defendant and his bail* and charge for each, or separate recognisances from the prosecutor and his witnesses; and charge.foreach, there the court, .in my opinion, was manifestly wrong. The fee bill gives to the justice for “ taking recognisance in any criminal ease, and returning the same to court, twenty cents,” The charge to the jury on this point was, “ that as the hearing of the parties arid witness, and the binding-over before the justice took place at one and the-same time, the defendant, Coates, was only entitled, at most, to two fees of twenty cents for two recognisances, viz. one fee of twenty cents for one recognisance, of the prosecutor and his witness or witnesses, and one fee of twenty cents for one recognisance of the defendant before him, and his surety or bail.” Now, I take it, this is not the law: it is a great mistake, that the prosecutor and all the witnesses are to be bound over in spite of- them, for the appearance of all at court; for this must be the inevitable effect of a joint recognisance’. As to binding the principal jointly with his bail, such may have been the practice of some magistrates,, but I am not avvare of it. I have taken some pains to effect a search among the records of one of 1he courts in this city, and am informed, no trace can be found of a joint, suit in such case. In those parts of the country where I have had an opportunity of seeing the practice, the suits have been invariably separate, which, it is believed, never could be upon a joint recognisance. Nor have I .been able to find any precedent of any-such joint recognisance in the books of forms. A practice of taking such joint recognisance in criminal cases, might be very inconvenient. To say nothing of the event of the death of the bail, who is usually the only person relied on, suppose the principal to be a man of substance, and after forfeiture, to die; would not the whole burden be thrown off his estate, and survive against the surety? The charge being in this part erroneous, in my apprehension, I am for reversing the judgment.

Judgment affirmed..  