The charge in the indictment does not allege that *586the excessive fees were included in a bill of costs taxed before a justice or police court, but the time of the alleged commission of the offence was prior to the return day of the writ, and all the allegations are perfectly consistent with the fact that the action bad never been entered ; and such is the construction to be given to the indictment. That being the case, the doctrine of Wilcox v. Bowers, 36 N. H. 372, is decisive against the prosecution. There the costs alleged to be illegal were paid by the defendant to the attorney before the entry of the action; and the court held the attorney not liable to the penalty for taking illegal fees, upon the ground that the penalty was limited to the case of excessive fe.es charged in bills of cost taxed in court, and that the penalty is not incurred when the payment is voluntary before the entry of the action.

The action of Wilcox v. Bowers was brought under the Revised Statutes, which provided—ch. 229, sec. 5—that “ The following fees shall be allowed in bills of costs taxed in the superior court or common pleas,” — “ Eor the writ including the blank, one dollar; ” and' then, in section 25, imposed a penalty of fifty dollars on any person who should demand and take any greater fee for any service than is allowed by law, or any fee to which he is not by law entitled ; and this being a penal statute, and to be construed strictly, could not be extended to the taking of fees not taxed in bills of costs in court, but voluntarily paid. These provisions are reenacted in the General Statutes, ch. 272, secs. 5 and 27 ; and in sec. 6 of the same chapter it is provided that “ The following fees shall be allowed in each bill of costs taxed before a justice or police court,” — “ Eor each writ, complaint, or pl.ea, one dollar.” So that the provision in respect to costs in a justice or police court are the same as they were in the superior court and court of common pleas, under which Wilcox v. Bowers was decided; and the doctine applied in that case, when the suit in which the costs were taxed was in the court of common pleas, applies with the same force to the present case, and must govern it.

' The counsel for the State urges that a defendant may tender to the plaintiff’s attorney, at any time before the return day of the writ, the amount of the debt and cost, and claims that the amount of that cost must be determined by the fee bill. If this be so, it would not follow that the highly penal provision should be construed to embrace such a case, when it clearly does not come within the terms of the act; and this provision, in respect to the tender before entry of the action, was considered by the court in Wilcox v. Bowers.

Upon these views, the indictment

Must be quashed.