MAY 1805 Harper Hampton Harper. The tender and refusal of a sufficient indemnity at the trial, precludes the defendant from availing himself of the want of indemnity. This certainly is the substantial justice of the case. The sti pulation in the contract of August 25. 1794, admitting it to be a condition precedent, could only mean, that before the defendant actually delivered the notes, or paid the amount, he should be indemnified. The only difference to him would be the costs and depreciation which may be allowed in assessing the damages. By the tender, and other circumstances, the condition precedent is in part performe l. 1. The condition was that he should be saved harmless. 2. It is in proof that he has till now been saved harmless. 3. The offered indemnity secures him in future. The doctrine of relation applies to this case. The plain. tiff's right of action did not commence on his giving the indemnity. Like the case of a title to land, which commences on the certificate, and is perfected by the patent. The last act, when done, will, upon the usual principle, relate back to the first act. If by the plaintiff's delay to perfect his right, the defendant has suffered an injury, as by the depreciation of the notes in his hands, &c. he may be compensated in the assessment of damages. Perhaps this tender and refusal standing alone, might not be sufficient. But it must be taken in connexion with the antecedent cir cumstances. 1. That this deed was accepted by M. and N. who have never objected to it, nor called on the defendant under his stipulation. 2. That the defendant made this stipulation with a perfect knowledge that it could not be fulfilled within the time, further than by the delivering of this deed. S. That he never has been called on himself, nor called on the plaintiff, for a deed free from this defect, which might at any moment have been obtained. 4. That he received the whole money, and now at the trial, for the first time, alleges, as an excuse for detaining it, this defect, from which he has not received and cannot receive any injury. Can there be a more flagrant abuse of legal principles, or a more glaring injustice? CHASE, Ch. J. The court are of opinion, and so direct the jury, that the tender of the bond to the defendant in the manner stated, and the refusal of it by the defendant, ought not in any manner to influence or affect the decision of this case, nor the verdict of the jury thereon. The plaintiff excepted. Verdict and judgment for the defendant. The plaintiff appealed to the Court of Appeals; and the case was argued in that court at June term 1808, by Martin and Key, for the Appellant, and the Appellant in proper person; and by Johnson, (Aftorney-General,) and Magruder, for the Appellee, before Tilghman. Nicholson and Gantt, J. It was continued under curia ad. vult. and in consequence of the death of Judge Tilghman, until December term 1809, when the Appellant dismissed his appeal. MAY 1805 Harper VS Hampton COURT OF APPEALS, JUNE TERM, 1805. MARTIN US. THE STATE. CLAYPOLE US. MARTIN. Sep An attachment of contempt against a juror for non at tendance, is not ar action for which the attorney gene re- fee for appeasing of ste ral can receive a for on behalf of the Where an indict. ment is found on a presentment in a THE first of these cases was a writ of error to the general court. It was for the removal of a judgment rendered in that court, on an indictment found at tember 1783, against the plaintiff in error, for ceiving a fee as attorney-general on an attachment contempt issued out of said court against a juror nonattendance at its September term 1778. There the party presente was a general demurrer to the indictinent, and a der in demurrer. The general court, at April 1788, overruled the demurrer, and fined the attorneygeneral £5 current money, and costs; and to reverse that judgment this writ of error was brought. criminal case and ed and indicted join- submits the case to term The other case was an appeal from the general court. It was an action of assumpsit for 151l 58 Od current money, for money paid, laid out and expended, brought in that court by the appellant against the appellee, and the case was submitted to the court on the court, the at torney general is not entitied to a fee of 200lbs. of tobacco or 255. Martin The State a statement of facts, viz. That the defendant, (Mar tin,) had been presented in Dorchester county court in 101 cases for assaults and batteries. That the deputy attorney of the state drew indictments on all and each of the presentments, and true bills were found. That the defendant appeared and confessed the charges, and submitted to the court, on each of the indictments, and was fined in each case, and or dered to give security for the fines and fees. That the plaintiff, (Claypole,) became security therefor, and paid the fees claimed thereon to the said deputy attorney of the state, to wit, twenty-five shillings on each indictment so found. The question submitted to the general court was, whether the deputy attorney of the state was entitled to receive 200lbs. of tobacco, or 25 shillings, for his fee on each of said indictments? And if so, judgment to be entered for the sum of 151 5s od current money damages, and costs; if not, non pross to be entered. The general court, at September term 1802, gave judgment for the defendant, and the plaintiff appealed to this court. Martin, (Attorney General,) the plaintiff in error, and for the Appellant. The object of the first proeeeding is to ascertain whether or not the attorneygeneral is entitled to a fee upon an attachment of contempt. He never did receive a fee on all kinds of attachments, but only in certain cases where the party had refused or neglected to attend the court as a juror, and which is considered as a criminal process. In cases where the attachment is used in the nature of a civil process, such as to compel the attendance of a witness, the attorney-general never did consider that he was entitled to receive a fee. And as this question is connected with that raised in the other case, which has been stated, for the purpose of getting the opinion of the court on a subject affecting the attorney-general, and his deputies, as to their fees in criminal prosecutions, where indictments are found, and parties submit their cases to the court, he wishes them to be considered conjunctively. Martin The State 1. He will take up the last case first, and endeavour JUNE 1805, to satisfy this court, that the judgment of the general court is erroneous, and ought to be reversed. In order to form a correct judgment in the case, it is ne cessary to attend to the act of assembly of 1715, ch. 48. This is not the act by which attorneys were originally entitled to receive fees. It is merely a restrictive act. Attorneys under that act are entitled to a fee of 400lbs. of tobacco in the general court, and 600lbs. of tobacco in the court of chancery and court of appeals, for prosecuting or defending any suit or action in either of those courts. The title of the act is "for rectifying the ill-practices of attorneys of this province, and ascertaining fees to the attorney-general, clerk of indictments, attorneys and practitioners of the law in the courts of this province, and for levying the same by way of execution." It is an established rule of law, that the title of an act cannot be taken into view in the construction of the act. The preamble may be resorted to for the purpose of clearing doubts in parts of the act which may be doubtful. The 1st section of the act of 1715, ch. 48, is relative to the issuing of criminal process. By this section, if there is no presentment, process is not to issue without an order of council or of the court. The 2d section prohibits the clerk of indictments, (meaning the deputy attorney of the state,) from issuing criminal process, where there is no presentment found, without an order of council or of the county court. The 3d section prohibits the clerk of the provincial court, or clerks of the county courts, from issuing criminal process, without an order from an attorney, &c. The attorney, to direct the process, must have an order of council or of the court. The 4th and 5th sections go to rectify certain abuses which had taken place in suing navigation bonds-Also that public bonds, when sued by an individual, must be endorsed for whose use suit is brought, &c. The 6th section contains that part of the law upon which this case is supposed to turn. By this section it is provided, with respect to prosecations in the county courts, that if the party pre JUNE 1805 sented confess his or her crime, and submit to the court, then the clerk of indictments, (meaning the de puty attorney of the state,) shall have 100lbs. of tobacco for bis fee, and no more; but if the clerk of indictments draws a bill of indictment upon the said presentment, and the party therein presented tra verses such presentment or bill of indictment, and puts himself upon the country for trial thereof, then the cl rk of indictments shall have 200lbs. of tobacco for his fee, and no more," It is well known that the party presented cannot be compelled to answer to a presentment without an indictment is found. He may submit on a presentment. The general court, in the case now under consideration, under this section of the law decided, that as the party did submit, though an indictment was drawn, the attorney was entitled only to 100lbs. of tobacco for his fee. If this construc tion is correct, there are a variety of cases where the attorney is not entitled to a fee at all. If we go upon the strict letter of the law, the court ought to have decided that the attorney was not entitled to any fee; for there is no provision in the law for any fee to the attorney, if there is an indictment draron, and the party submits to the court The law only gives a fee of 200lbs. of tobacco if there is an indictment drawn, and the party traverses the indictment, or a fee of 100 lbs. of tobacco if there is only a presentment, and the party confesses the charge, and submits to the court. It is contended that 200lbs. ol to arco is tie te nall cases in the county courts, unless particularly restrict ed by this act. By this section of the act there are only two cases noticed, viz. If the party submits on presentment, or where an indictment is drawn, and the party traverses and puts himself upon the country. Suppose the party demurs to the indictment. This is not a case within the letter of the law; and the attorney is not entitled to a fee, if the construction which the general court has given to the act is correct. Suppose the person presented or indicted obtains a nolle prosequi. There is no fee allowed by the law-and yet the attorney has had all the |