Volume 1 — Virginia Cases

<p>Criminal Law—Indictments—Failure to Allege Juris» diction—Effect.*—An indictment laying the offence as committed in the county of N., in the parish of H., without the words, within the jurisdiction of tisis court, or, within the county, or the district, composed of the counties for which the court is held, was had, after verdict, until the act of January 24th, 1804.</p>

<p>Caveat—Copies—Certification—Case at Bar.—Copies of caveats from the Land Office, certified by a cleric of the office, and not by the Register, void.</p>

<p>Forgery of Power of Attorney—Effect under Act of 1789. —Forging a power of attorney to recover money for military services, not a crime within the “act against forgery,” passed 25th November 1789.</p>

<p>Judgment—Depending on Prior Judgment—Reversal-Case at Bar.—A judgment depending on a prior judgment (which prior judgment is reversed), may he reversed without error apparent on the record of the subsequent judgment, other than the connexion between the subsequent and the prior reversed judgment.</p>

<p>Offence Created by Ordinance of Convention of Delegates of 1776—Conclusion of Indictment.—An offence created by an ordinance of tbe Convention of Delegates of 1776, is punishable; and a conclusion of an indictment against the form«of the act of the Convention, &c., is good.</p>

<p>Offence Created by Ordinance of Convention of Delegates of 1776—Conclusion of Indictment—Case at Bar.— Where the offence was created by ordinance of the Convention of Delegates of 1776, a conclusion of an indictment against the form of the act of Assembly, &c., is bad.</p>

<p>Criminal Law—Murder—Special Verdict.—Indictment in District Court for murder. Jury finds special verdict setting forth the facts and referring it to the opinion of the court whether the facts constitute murder or manslaughter. District Court adjourns the uuestion to the General Court, which is of opinion that the prisoner is gnilty of murder, and orders the opinion to be certified to the court below.</p>

<p>Criminal Law—Indictments—Larceny—Slaves—From Whose Possession Stolen.*—An indictment for larceny of a slave of the goods and chattels of one A, and out of the possession of the said A, is bad, if the slave was hired for the year to B and was in B’s actual possession at the time of the larceny.</p>

<p>Justices of Peace—How Removed from Office.—The Executive cannot remove a justice of the peace from office. He may be removed by the judgment of a superior court of law.</p>

<p>Punishments—Fine and Imprisonment—Failure of Jury to Assess Fine—Effect.—where the penalty is fine and imprisonment, and the jury in a verdict of guilty, fail to assess the fine, the prisoner may nevertheless he imprisoned.</p>

<p>Several questions arose in this case:</p> <p>1. High Court of Chancery and District Courts—Statute Conferring on Latter Jurisdiction of Injunction Cases —Constitutionality.*—Tile high court of chancery being a constitutional court, and the district courts, as constituted, being legislative: whether an act of Assembly (passed Dec. 12th. 1792, § 11), giving to the district courts “the same power of granting injunctions to stay proceedings on any judgment obtained in any of the said district courts, as is now had and exercised by the judge of the high court of chancery in similar cases, and (declaring that) the said district courts may proceed to the dissolution, or final hearing, of all suits commencing by injunction, under the same rules and regulations as are now prescribed by law. for conducting similar suits in the high court of chancery,”—was constitutional. The question arose upon amotion in a district court, for an injunction to stay proceedings upon a j udgment of such court.</p> <p>2. Same—Same—How Composed—Right to Exercise Functions of Chancery Judge.—The district courts being composed, by act of Assembly, of two judges of the general court, which was a constitutional court; whether judges of the general court could constitutionally exercise the functions of a judge in chancery.</p> <p>3. Constitution—Separation of Common Law and Chancery Jurisdiction.—Whether the intention of the constitution was, absolutely to separate the common law and chancery jurisdictions.</p> <p>4. Same—Same—Right of Legislature to Unite in Same Court.—Whether, if the constitution absolutely separated the common law and chancery jurisdictions, the legislature could unite them in the same courts, directly or indirectly.</p> <p>5. Constitution of 1776—Right of Legislature to Alter. —Whether the constitution of 1776 was of superior authority to ordinary acts of the legislature, and revocable, or subject to alteration, by that body. These questions were elaborately discussed by the members of the court, who differed upon the second and third; but unanimously concurred in the negative of the fourth and fifth. Upon the first, the question immediately before it for decision, the court unanimously certified to the court below: That the powers and duties assigned to be performed (in the 11th section of the act of 12th Dec. 1793), could only be executed by those who might be constituted judges in chancery, in the manner prescribed by the constitution, and that the motion for an injunction in the district court, must be overruled.</p>

<p>Criminal Law—Indictment—Sufficiency—Misnomer.*— Special verdict found the prisoner guilty of transferring a certificate of debt of the Commonwealth, purporting to he signed by two auditors of public accounts, knowing it to be forged; ¿/parol proof of the official appointment of the auditors was sufficient, and if the misspelling of the Christian name of one of the auditors in the indictment was not material. Held, that the law was for the defendant.</p>

<p>Forthcoming Bond—Excess of Interest—When Error Immaterial.*—A forthcoming bond is taken for a greater sum than is due upon the fieri facias; but this appears by computation in court upon a motion for award of execution, and does not appear on the face of the bond. Held, the court may award execution for the true amount due.</p>

<p>Criminal Law—Benefit of Clergy—Case at Bar.—Separate verdicts found each of the prisoners guilty of feloniously stealing a horse of the value of £20, on the 29th Sept., 1793. Prisoners severally prayed benefit of clergy. Held: The prisoners are entitled to the benefit of clergy; the cokrt ought not to proceed to judgment, and that a new indictment ought not to be preferred.</p>

<p>Criminal Law—Murder —Special Verdict.—Upon a special verdict, setting forth the facts attending-the shooting and killing of A by the prisoner, finding the prisoner guilty of murder—suin' ect to the opinion of the court upon the facts found; otherwise, fending him guilty oimanslauuhter'. Head, by the court that the facts did not constitute murder.</p>

<p>Statute Allowing Summary Trial—Trial upon Pleadings —Effect.—An indictment for three different offences against different persons, viz: one for exhibiting a faro bank by one accused; one for playing at such bank by two others accused, and one for'knowingly suffering such conduct in his house by another accused: held, good and sufficient in law.</p> <p>Same—Practice—Plea.—Where act of Assembly allows the trial of an offence in a summary way, without pleading or jury; held, it is not error for the trial to be had upon pleadings and by a jury. Heed: plea—in arrest of judgment—to the jurisdiction of district court of the offences charged ' in the said indictment, was bad.</p>

<p>Indictment—Counts—Insufficiency*—Case at Bar.—One count of indictment charged larceny of a slave “from the possession of A.” The other count charged larceny without alleging from the possession of any one, and not concluding contra formant statuti. Verdiet found the stealing while the slave was runaway. Heed : the first count insufficient, the slave not being stolen “from the possession of A”; the second count insufficient, the offence charged not being an offence at common law.</p>

<p>Ejectment—Plaintiff Nonresident*—Security for Costs† —Notice to Attorney—Case at Bar.—Where plaintiffs (in ejectment) were nonresident, and an order was entered for security for costs, to be given within sixty aays, the plaintiffs’ attorney having notice of the order: and no security was entered within the sixty daysHeld : It is error to dismiss the suit for failure to give the security within sixty days, if sufficient security is offered at the time of the motion to dismiss. Held : Notice to the attorney prosecuting the suit, of the order for security, sufficient, where there is no agent or attorney in fact, or plaintiffs.</p>

<p>Misdemeanors—Change of Venue—Notice.*—In prosecutions for misdemeanors and trespasses, the venue may be changed, upon notice to the prosecutor, tor good cause shown.</p>

<p>Criminal Prosecutions—Appeal—Right of Commonwealth to.—The right of appeal does not extend to criminal cases, or to prosecutions by indictments in behalf of the Commonwealth. Vide Vawter’s case, post, p. 121, and Temple's case, post, p. 16S.</p>

<p>Misdemeanors—Change of Venue—Notice.*—In prosecutions for misdemeanors and trespasses, the venue may be changed, upon notice to the prosecutor, tor good cause shown.</p>

<p>Crimina! Prosecutions—Appeal—Right of Commonwealth to.—No appeal or w'it of supersedeas is grant-able in any case wherein the Commonwealth is plaintiff upon a penal statute, which is considered in the nature of a criminal prosecution. Vide Temple's case, p. 163.</p>

<p>Bonds—Not Duly Stamped—Not Admissible as Evidence.*—The act of Congress, entitled,' “An act laying duties upon stamped vellum, parchment and paper,” being enacted in pursuance of the constitutional power to levy and collect taxes, duties, imposts and excises, and being therefore constitutional, although changing the rules of evidence in State courts; Held : in an action of debt, upon a bond, the bond not being duly stamped, could not go in evidence to the jury.</p>

<p>Criminal Law—Indictment—Maiming—Plea—Right to Preliminary Examination.*—Upon an Indictment being found against the prisoner for maiming, a capias, returnable immediately, was issued, upon which the prisoner was brought into court (Sept., 1800), and pleaded not guilty. Seven days after, upon a continuance to that day, at the same term of the court, the prisoner was allowed to withdraw the plea, and thereupon pleaded a right to a preliminary enquiry by a court of examination. Held: the new plea must be overruled, and the court must proceed upon the indictments.</p> <p>Treason and Felony—Preliminary Examination—Statute.—The law of Jan. 24th, 1804, required a preliminary examination in all cases of treason and felony.</p>

<p>Jurisdiction—Arrest of Judgment—Failure of Records to Show Plaintiff’s Demand Reduced below $100.— Judgment in district court in an action of assumpsit, upon a verdict for less than $100, arrested because the record did not show that the plaintiff’s demand was reduced below $100. by a set-off against the same offered on the part of the defendant at the trial. Vide, Neff v. Talbot, post.</p>

<p>Statutory Penalty—Not Recoverable by Informatioia.*—Where an act, declaring a torfeiture against a penal offence, gives the forfeiture to any person who will sue therefor, and gives no remedy to the commonwealth; Huld: the forfeiture cannot be recovered for the use of the commonweal til by information. Vide note at the end of the case.</p>

<p>Criminal Law—Assault and Battery—Change of Venue.* —Upon an indictment for assault and battery; the venue was allowed to be changed, but not to the county prayed for by the prosecutor.</p>

<p>Indictment—Bribery of Deputy Sheriff—Need Not Set Out Amount of Bribe.—An indictment for attempting to bribe a deputy sheriff to summon designated persons upon a jury to try a felony, held to be good, though the amount of the bribe is not set forth, and though the offence is not an offence at common law.</p> <p>Criminal Law—Fines—Commitment—Not Dis= charged by Act for Relief of Insolvent Debtors.—A person convicted of a misdemeanor, and committed until he shall pay the fine assessed against him, cannot discharge himself therefrom, under the act made and provided for the relief of insolvent debtors.</p> <p>Same—Same—Same—Later Act Allowing.—But vide act of Dec. 28,1803, and subsequent re-enactments, allowing such discharge.</p>

<p>Noli Prosequi—Consent of Court.—Commonwealth's attorney has not a right to enter a noli proseaui in any case, without the consent o £ the court first had.</p>

<p>■Jurisdiction—Assumpsit—Amount in Controversy— Case at Bar.—The special counts in assumpsit claimed less than $100. The general count claimed $300. The damages laid were $500. The jnry could not agree at the trial, and a juror was withdrawn. The case was submitted to arbitration, and the award agreed to be made the judgment of the court. The award was for less than $100. Held, the District Court had jurisdiction. Vide ante, p. 131, Maitland v. McDearman.</p>

<p>Recognizance—Bail—Jurisdiction oí District Court— Case at Bar.—A recognizance of prisoner and his bail having been entered before a county court for the prisoner’s appearance before the District Court: Held: a scire facias against the bailforthe penalty o£ the recognizance issuing from the District Court must be quashed, that court not having jurisdiction.</p>

<p>District Courts — Jurisdiction — Felony—Preliminary Examination.—The district court has not original jurisdiction to receive and sustain an indictment for felony, before an examination before a court of justices in the manner prescribed by law.</p> <p>Felony—Preliminary Examination—Indictment.—After such an examination, and after the prisoner’s committal to the jail of the District Court, a new indictment must be filed against him before his trial in the said court. Vide act of January 24th, 1804, and vide also, Commonwealth v. Blakley, ante, p. 129, decided before that act.</p>

<p>Conviction for Larceny—Motion for Execution on Judgment—Overruled.—Motion for an execution, to be issued on a judgment entered in favor of A against B upon conviction of B for larceny, for money mentioned in tbe indictment, overruled.</p>

<p>Conviction for Larceny—Motion for Execution on Judgment—Overruled.—Motion for an execution, to be issued on a judgment entered in favor of A against B upon conviction of B for larceny, for money mentioned in tbe indictment, overruled.</p>

<p>Forgery—Judgment Overruled—Case at Bar.—Upon an indictment for forging a check upon the Bank of Virginia, and obtaining a note of the said bank therefor (under the act of 18th Nov., 1789, passed before the existence of the said bank), and a verdict of guilty. Held: judgment must be arrested. Vide, post, s. c. p. 150.</p>

<p>Porgery—Motion to Arrest Judgment—Overruled—Case at Bar.—Upon an indictment lor forging a check upon the Bank of Virginia, and obtaining therefor money current in the Commonwealth of Viruinia, and verdict of guilty. Held: motion in arrest of judgment must be overruled. Vide, s. c. ante, p. 146, and act of 18th Nov., 1789.</p>

<p>Criminal Law—Conviction of Several Distinct Pelo» nies—Imprisonment.—A prisoner convicted of several distinct felonies may be adjudged to undergo several distinct terms of confinement in the penitentiary; the several imprisonments to commence respectively, from and after the expiration of prior imprisonments adjudged against him.</p> <p>Same—General Charge of Felony by Examining Court—Final Trial for Distinct Offences.—An examination by an examining court upon a. general charge of a felony is sufficient, although at the final trial the offence was parceled out and divided into distinct offences.</p>

<p>Indictments—Misdemeanor—infamous or Corporal Punishment—Capias.—Where an indictment or presentment is found by a grand jury for a misdemeanor punishable with an infamous or corporal punishment, the court may award a capias in the first instance: and, where the punishment is of an inferior nature, and two venire faciuses have been returned not found, there also the court may award a capias.</p>

<p>Justices of Peace—Amotion from Office—Discharge of Jury—Additional Evidence*—Case at Bar.—The defendant, tried in the District Court for misbehaviour in his office of justice of the peace (the particulars of which are sot out in the indictment), was found guilty, and a fine assessed by the jury. The commonwealth's attorney moved for judgment for the fine, and also that the defendant be removed from his office of justice of the peace. Held, that judgment of a motion from the office of justice of the peace ought to he rendered. Held also, that after the discharge of the jury, the court cannot hear additional evidence of general ill conduct and maladministration of the defendant in office.</p>

<p>Freehold Estate in Rent—Jurisdiction of Justice to Try Title*—Writ of Prohibition.†—Held: A writ of prohibition ought to be awarded by the district court against a justice’s warrant, 'brought to recover rent reserved in a deed, to the grantor and his heirs forever—the rent being a freehold estate of inheritance in an incorporeal hereditament, for which debt, account or assumpsit will not lie.</p>

<p>Misdemeanors—Judgment—How Reversed—Case at Bar.—It is only by the common law writ of error, and not by appeal or supersedeas, that the judgment of an inferior court upon a presentment for a misdemeanor can be reviewed and reversed by a superior court; and Hie writ of error may issue without regard to the costs or value of the judgment, and without the assent of the commonwealth's attorney.</p>

<p>Indictments—Count—Bad as to One Office—Good as to Another.*—In an indictment in the District Court of M. county, a count for beating, &c., A B with a hickory club, &c., thereby maiming and disabling him by fracturing his skull, &c.; held, not to be a good count for mayhem, but good as a count for assault and battery of an aggravated nature.</p> <p>Practice—Plea of Autrefoits Acquit—Not Supported by Record†—Case at Bar.—A plea to such indictment, that the offence charged, if committed, was committed in H county, and that after the commitment of the offence, an examining court of H county had acquitted the defendant of the same— the plea making proferí of the record of said examining court; held, that any plea of autrefoits acquit is not supported by the record of the examining court of II county.</p> <p>Same-Plea of Autrefoits Convict—Not Supported by Record—Case at Bar.- -A plea of autrefoits convict, to such indictment, held not to be supported by the record of an action prosecuted by the assaulted person, in which the declaration charged the beating and fracturing of the skull, &c., in terms seeming to show the offence to be the sam e, and in which the prosecutor recovered damages iromthe defendant.</p>

<p>Sale of Insured Property—Failure to Assign Policy— Liability of Purchaser for Quotas—Statute.—A declaration for the assurance of property in a mutual assurance society, is made by B, who afterwards. conveys the property to C, without assigning the policy. The act of 1774 directs the subscriber of assured property to apprise purchasers of the insurance, and to assign the policy; and declares that the purchaser shall be a subscriber in place of the vendor, and that the property shall remain insured, and liable for quotas of premiums; held, that a recovery by motion may he had against C for quotas due.</p>

<p>Criminal Law—Misdemeanors—New Trial—Motion Made Two Terms after Verdict.*—A superior court may grant a new trial upon an indictment for a misdemeanor, although motion for the same he not made until the second term after verdict.</p> <p>Same—Offence Punishable by Fine and imprisonment— Judgment for Fine.—Where an offence is punishable with flue and imprisonment, a superior court may render judgment for the fine only.</p> <p>Same—Corporal Punishment—Presence of Prisoner.†— Unless expressly authorized by statute, no court can give judgment of imprisonment, or other corporal punishment, unless the defendant is present in court.</p>

<p>Criminal Law—Indictment for Libel—Plea of Truth.— Upon an indictment or information for libel, it is in no case necessary or proper for the defendant to plead the truth of the libel.</p> <p>Same—Same—Against Public Officers—Truth a Justification.—Upon an indictment or information for libel against public officers, or candidates for public office, truth is a justification, and may be given in evidence.</p> <p>Same—Same—Truth in Mitigation of Damages.—Upon an indictment or information for libel of individuals, not public officers, or candidates for public office, truth is no justification, but may be given in evidence in mitigation of a fine.</p>

<p>Perjury—Insolvent Debtors—False Oath.—A false oath taken by an Insolvent debtor, under the act “for the relief of insolvent debtors,” is punishable, and is perjury at common law.</p>

<p>Appellate Jurisdiction—Writ of Supersedeas—Amount in Controversy.—A writ of supersedeas was held to have been properly granted by a circuit court to the judgment of a county court, although the principal, exclusive of the interest for which the judgment was rendered was less than the prescribed amount giving jurisdiction.</p>

<p>Malicious Stabbing a Slave—Indictment for—Statute*— Case at Bar.—An indictment for the malicious stabbing of a slave could be supported under the act of January 28th, 1803, which gave three-fourths of the fine to the use of the party aggrieved, although the slave could not take the fine.</p>

<p>Grand Jurors—Qualification-—Census Enumerator.— An appointment under a law of Congress to take tlie census of a county, does not disqualify the appointee from being a member of the grand jury thereof.</p>

<p>Criminal Law—Murder—Examining Court—Powers.'*’— An examining court has not power to acquit a person charged with murder, of the murder, and to remand him to be tried for mcmslauahter in the superior court on account of the same homicide.</p> <p>Same—Same-Same—Acquittal oi Murder by—Effect in Superior Court.—An examining court having acquitted of murder and remanded the prisoner to the superior court lobe tried for manslaughter; it is lawful for the superior court to indict for murder, and the prisoner, being so indicted, is not entitled to be bailed on the ground of no indictment being found against him for the manslaughter.</p> <p>Sorrel’s Case, post, p. 253, and John Hailey’s case, post, p. 255, reviewed and re-affirmed, which cases see.</p>

<p>Criminal Law—Murder—Examining Court—Powers.— An examining court bas not power to acquit a person charged with, murder, of the murder, and to remand him to be tried for manslaughter in the superior court on account of the same homicide.</p> <p>Same—Same—Same—Acquittal of Murder by—Effect in Superior Court.—An examining court having acquitted of murder and remanded the prisoner to . the superior court to be tried for manslaughter; it is lawful for the superior court to indict for murder, and the prisoner, being so indicted, is not entitled to be bailed on the ground of no indictment being found against him for the manslaughter.</p>

<p>Criminal Law—Murder—Examining Court—Powers.— An examining- court has not power to acquit a person charged with murder, of the murder, and to remand him to he tried for manslaughter in the superior court on account of the same homicide.</p> <p>Same—Same—Same—Acquittal of Murder by—Effect in Superior Court.—An examining court having acquitted of murder and remanded the prisoner to the superior court to he tried for manslaughter; it is lawful for the superior court to indict for murder, and the prisoner, being so indicted, is not entitled to he hailed on the ground of no indictment being found against him for the manslaughter.</p>

<p>Husband and Wife—Joint Indictment against.—Husband and wife may be joined in an indictment for tbe same offence.</p> <p>Same—Same—Damages Assessed Separately.*—Joint damages ought not to be assessed against two defendants, although husband and wife, and for the same offence; but should be assessed against each defendant separately.</p>

<p>Criminal Cases—Bills of Exception—Signing.—The County Court is not obliged to sign a bill of exceptions in a criminal cause.</p> <p>Same—Same—Signing by County Court—Writ of Error —Record."8—Although a County Court do sign bills of exceptions in a criminal cause, the bills of exceptions are not thereby a part of the record cognizable by the superior court upon a writ of error.</p>

<p>County Courts—Authority to Administer Insolvent Debtor’s Oath.—The County Court had not on the 5th day of September, 1809, legal and competent authority to administer the insolvent debtor’s oath.</p>

<p>Statutory Penalty—Must Be Recovered as Statute Directs.*—An information qui tam does not lie to recover a penalty imposed by statute which makes the penalty “recoverable on warrant, petition or action, as the case may be.”</p>

<p>Jurisdiction—County Courts—Injunctions against Judgments.*—A county court has no power to make an order enjoining the judgment of a superior court.</p>

<p>Duels—Power of Judge Out of Court to Commit a Witness Who Refuses to Give Testimony.—A judge out of court, may, when he has reason to suspect a duel is about to take place, commit a witness who refuses out of court to give testimony by affidavit, when the party accused is not before the judge, until he shall give testimony. Such power exists when the party is before the judge.</p>

<p>Examining Courts*—Record—Must Show Fact upon Which Prisoner Remanded.—It should appear in the record of the proceedings of an examining court for what fact the prisoner has been remanded.</p> <p>Superior Court—Must Look to the Record—What Constitutes.—A superior court has a right to look into the warrant summoning the magistrates of an examining court, which is part of the record; but not into the warrant of commitment, which is not a part of the record.</p> <p>Indictments—Quashing—Discretion of Court.—In general it rests in the sound discretion of the court whether it will quash an indictment.</p> <p>Same—When Court Must Quash Indictment.—Nevertheless, if the fact for which the defendant has been examined by an examining court cannot be ascertained from the record of that court; but can only be ascertained by testimony dehors it is the duty of the superior court to quash the indictment.</p> <p>Same—Testimony Dehors Record—Court Cannot Look into.—In such case, testimony dehors, the record of the examining court cannot be looked into.</p>

<p>Buggery—What Constitutes the Offence.—The penetration of a beast by a man, against the order of nature, without emission, constitutes buggery.</p>

<p>Justices of Peace—Hisbehavior in Office—Intoxication —Amotion.—Sitting on the bench while in a state of intoxication from drinking spirituous liauors, and rendered thereby incompetent to discharge the duties of the office with propriety, decorum and discretion, is misbehavior by a justice of the peace, for which a superior court may render judgment of amotion from office against him.</p>

<p>Indictments—Need Not Charge That Defendant Was Examined by Examining Court.—An indictment in a superior court need not charge, and it need not appear from the record of such court, that the defendant has been examined by an examining court for the offence, for which he is indicted.</p> <p>Criminal Law—Hurder in First Degree—Indictment— Allegation.*—An indictment for murder in the first degree, need not charge specially such facts, as would show an offence to have been murder in the first degree.</p>

<p>Criminal Law—Assault—Information—Statute of Limitations.*—Under the act of 35 January, 1805, § 3, to amend the penal laws of this commonwealth, an Information for an assault cannot he filed after more than one year from the commission of the assault.</p>

<p>Attachments—Process to Compel Appearance—Authority of Superior Court to Compel County Court to Issue*—Case at Bar.—In the case reported it was held that a county court ought not to be compelled by a superior court to Issue process to another county to compel the appearance oí a person summoned as a garnishee under an attachment against an absconding debtor.</p> <p>Same —Same—Jurisdiction.—-Qucere: whether a county court has legal authority to issue such process.</p>

<p>Justices of Peace—Disqualification—Contract for Carrying Mail.—Entering into a contract with the United States for carrying the mail, and being employed in performance thereof in transporting the mail, is a disqualification from holding the office of justice of the peace of this commonwealth</p>

<p>Criminal Law—Juries*—Separation of without Order of Court—No Ground for Release of Prisoner.—It is not sufficient ground for a discharge of a prisoner from further prosecution, under an indictment, that at a former term of the court, he had been arraigned upon the said indictment, a jury had been impanelled, been charged with his case, had retired to consult of their verdict, and, not agreeing, were confined the full legal term of the said court, and did not render any verdict in the case, but separated in the adjournment of the court at the end of the term without an order discharging them.</p>

<p>Jurisdiction of State Courts—Offences Created by Act of Congress.*—The courts of this commonwealth have not jurisdiction to try offences created by acts of congress.</p>

<p>Jurisdiction—Federal Court—Matter of Law Certified to by High Court of Chancery.—The General Court had not jurisdiction to consider matters of law certified to it for opinion by the high court of chancery.</p>

<p>Jurisdiction—General.Court—Matter of Law Referred to by Superior Court.—If a superior court decides upon a matter of law in a criminal court, and after-wards refers it to the general court for its opinion thereon, the general court has not jurisdiction to consider the Question; yet, see M’Caul’s Case, ante, p. 271, where the court did take cognizance of decided Questions.</p>

<p>Contempt—Fine—Writ of Error to County Court.—A writ of error from a superior court lies to a iudgment of a county court imposing- a fine for contempt of said county court.</p> <p>Same—Filing Protest against Action of Court by Justice —Case at Bar.—The filing of a protest by a justice of a county court, against certain action of the court, decided not to be contempt in the special case reported.</p>

<p>Attachment against Clerk—Subpcena Duces Tecum— Rule to Show Cause*—Case at Bar.—An attachment against the clerk of the executive council of the commonwealth, who has been served with a subpcena duces tecum, ought not to issue from the superior court of a remote county, until a rule is served upon the said witness to show cause why it should not issue.</p>

<p>Presentment—Unlawful Gaming—Defendant May Appear by Attorney. †-—A defendant, presented for unlawful gaming, may appear and plead by attorney, without making his personal appearance.</p>

<p>Presentment—Unlawful Gaming—Defendant May Appear by Attorney. †-—A defendant, presented for unlawful gaming, may appear and plead by attorney, without making his personal appearance.</p>

<p>Presentment—Unlawful Gaming—Right of Trial by Jury*—Case at Bar.—A defendant, presented for unlawful gaming, Is entitled to trial by jury, although the superior court has tried the issue and given judgment for twenty dollars, the penalty prescribed by law.</p>