The opinion of the Court was delivered by
Ro&ers, J.To discourage vexatious suit against Justices of the Peace, the act of 21 March, 1772, directs, that before any suit shall be brought against such justice, for any thing done in the execution of his office, notice in writing shall be given, for at least thirty days before suing out or serving the process. The act directs that the notice shall clearly and explicitly contain the cause of action, and the name of his agent or attorney, with the place of his abode, endorsed on the back of the notice. The cause of action here appears to be clearly and explicitly set forth. There is such a sufficient and substantial notice, as that he could not have been ignorant of the charge made against him. He is apprized of the sum and the occasion on which it was extorted, so *12'that he might have tendered the amount, if he had chosen to do so. But another objection remains to be considered; this is not so clear. The notice charges that the justice received illegal fees, exceeding the amount that aldermen and justices of the Peace are permitted to receive, by the act of assembly of the 22d Eeb. 1821. In the declaration he declares on the Fee Bill of the 28th March, 1814. That is he gives notice under one act, and declares on another, and entirely different act. I cannot regard the reference to the act of the 22d Feb. 1821, as surplusage, but as a substantial averment that he intended to proceed on that act. From this ;he ought not to be at liberty to depart in a penal action against a justice of the Peace, whom the legislature have endeavored to protect against harrassing and vexatious suits. I have examined the authorities cited by the defendant'in error, which do not, in •my judgment, support the position assumed, that the reference to the act is surplusage, particularly as the act referred to and the act declared on, differ materially in the eonrpensation allowed, for the various services performed.
Judgment reversed and venire de novo awarded.