The opinion of the court was delivered by

Rogers, J.

'The legislature have shewn great anxiety to restrain officers from charging or taking illegal fees, as appears in the twe»tysixth section ofthe act of'2Sth of March, 1814. There is another class of cas&s, to which the act applies. The Justice is prohibited from ta- *523' king greater or other fees than those expressed or limited in the act: from charging or demanding and taking anyffee, when the business for which the charge is made, has not been actually performed: and from charging or demanding a fee for services, unless the services are expressly provided for by the act. If the plaintiff consents to a continuance, the justice is not entitled to two trial fees. The utmost extent, to which his right would extend, would be to demand compensation for investigating plaintiff’s claim, and entering judgment by default, but for this, the fee bill allows but twelve and a half cents. Here the Justice has charged twenty-five cents. If the act does not allow him to charge two judgment fees, the case comes within the third class; and then, ‘charging the fee, without more, subjects the Justice to the penalty, because he would charge a fee for services, not provided for by the act. I incline, however, to believe, that the Justice may charge, in some cases, two judgment fees; as suppose, a judgment by default, opened for a rehearing, and judgment again rendered, on trial, a defence having been made by defendant.' This case comes within either the first ox-second class. If the penalty hasbeen incurred, itisbecause the Justice has charged and taken a fee, where the business for which the charge is made, has not been actually performed, or because he has taken a greater fee, than the fee bill allows. And whether it falls within the first or second class, the question is the same. It will be observed, that the charge was made by the Justice and endorsed on the execution; that the fee charged was collected by the constable but has not been paid over to the justice. Is that a taking by the Justice? we think it is. The object of the act was to shield debtors from oppression, and particularly to guard against compensatory fees to officers. The penalty is given to the pax-ty injured, and whether the charge is made ignorantly, or oppressively and fraudulently, isjimmaterial. The penalty is incurred by the fact of talcing, in the two first classes, or by the act of chargingth e fee in the third. I agree that to incur the penalty in the second-class, the Justice must charge and take or demand and take afee for services, for which he has a right to charge, but where the services have not been actually done or performed. So that, whether the offence fall within the first or second class, the question turns upon the point, whether there has been a taking, within the meaning of the act. There is no doubt, the Justices made an illegal charge, and so the court instructed the jury; but it has been argued, and so the court ruled, that the offence is not consummated, because the constable, and not the Justice received the fees. The act of Assembly, although it inflicts a penalty on the Justice, is a remedial act, and as such should receive such a construction as to carry into effect the intention of the Legislature, provided it may be done without doing violence to the words of the act. The constable acted in obedience-. *524to a warrant of the Justice, under process placed in his hands by the Justice. The injury is the same to the defendant, whether the tice received the illegal fee or not. The debtor has been compelled to pay an illegal fee, by authority derived from the Justice, and is entitled to the penalty. The act not only operates as a punishment upon the Justice, but serves to remunerate the debtor for the wrong done, by the illegal seizure and sale of his goods. The com stable is something more, as regards the collecting of1 the illegal fees than the agent of the Justice: he is the officer of the law, and as such, bound to obey its mandate, without a nice enquiry into the legality or illegality of his charges. And if he were the agent, merely acting under the command of his principal, it would be an1 illegal taking. The third section of the fee bill speaks of lees, taken by the sheriff. It would be a narrow construction, to say) tbat.jllegal fees., levied upon a defendant by a sheriff, through hjs.deputfts, does not subject him to. the penalty,'although at the time of suit they may not have been actually paid over to the sheriff,' I speak of those cases where the deputy acts in obedience to the commands of the sheriff. Unless we give the act this construction, it Igaves the debtor, without any effectual remedy fop'an injury, whit® as it is against me laws, maybe of the most oppressive kind. Therffwould be danger of collusion between the Justice and the constable. It would in snipe cas.es, be difficult for the party agrieved to know when to bring suit. Success would depend upon his shewing that the money had been actually received by the Justice. If suit were delayed, arising from the uncertainty yvhich would_ be produced by such a state o.f things, th.e Justice might protect himsélf by the act of limitations, and which, in favor of Justices, is but six months. Ns Justices may sometimes inadvertently commit errors, the law enables them to, protect themselves, by tender of amends, of the sufficiency of which the jury is to, judge. If the testimony is worthy of credit, th.e Justice was anxious to make amends, but was prevented from doing so by the unreasonable conduct of the plaintiff. On a second trial, it may be worthy of enquiry, whether the plaintiff has not dispensed with the tender. It is very true, as was stated by the court of Common Pleas, that the mere offer to pay money, is not, in legal strictness, a tender. 2 Dal. 1&0, But if a man is bound to do, a thing, he must either do it, or offer to do it; if no objections are made, he must shew that he made the tender in' a regular manner; but thjs isi not necessary, if the other party by his conduct dispense with a regular tender, by a previous refusal to accept it, 1 Peter’s R. 24, Blight v. Ashley et al. Where the Justice shews himself willing to make amends, and makes a specific offer; (he least the other can do is to make known his objection, if he have any, and to inform the Justice what compensation he expects. But if instead of doing this, he walks off, and declares he will have noth*525ingto do with it, that the law must take its course, it is difficult to» imagine for what good purpose the law should exact, what under, the cirumstances, would be useless, a final and regular tender.

Judgment rgverged £ujd a peitfre de novo awarded