"then depending and undetermined.] And the said John "Miller says that the rent reserved to the said Lord "Fairfax, and his heirs and assigns by the deed afore"said, under which the said James M. Marshall claims "the rent aforesaid, was a freehold estate of inheritance "in an incorporeal hereditament in the said Lord Fair"fax, and that the said J. M. M. claims the said rent as ❝issuing out of the said lot, and payable to him and his "heirs and assigns for ever, and the said John Miller "further saith, that the said demand, claimed and de"manded by the said James M. Marshall of him the said

John Miller, by warrant before the said John S. Wood"cock, and the account stated and claimed by him as "aforesaid, is the same with the aforesaid rent, and not "other or different therefrom, and the said James M. "Marshall him the said J. Miller before the said John S. "Woodcock as a justice of the peace as aforesaid, of and

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upon the premises to appear hath wrongful ly bliged, "and the said J. Miller thereupon there to answer, and "in the premises to cause to be condemned with all his "power and endeavours, and daily contrives in contempt "of the authority of the courts of record of the said com"monwealth, against the laws and customs of the com"monwealth, and to the manifest prejudice, damage, and grievance of him the said John Miller, and this he is "ready to verify, with this that the place [named in the "warrant of the justice where Miller was to appear] is

"in the county of Frederick aforesaid, &c. &c. and that "the said Marshall and Woodcock are both of said "county, &c. and the said lot of ground out of which the “said rent is claimed to issue, and the said J. Miller, "and all the persons and things concerned, &c. are "within the county of Frederick, and within the juris"diction of this court, and subject to its rules and pro<c cess; wherefore the said John Miller, the aid of this "court most respectfully demanding, prays remedy by "the commonwealth's writ of prohibition to the said "John S. Woodcock, justice of the peace as aforesaid,

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or other justices in form of law to be directed to pro"hibit him and them from holding the plea aforesaid, "of and concerning the premises aforesaid, farther be"fore him or them, &c." The matters of fact contained in this suggestion were sworn to.

The district court adjourned the cause to the general court for novelty and difficulty, and that court, on the 13th June, 1808, present, Judges Tyler, Nelson, Stuart, and Brooke, decided "that the District Court of Win"chester ought to award the writ of prohibition in the "said record mentioned."

Emanuel Temple against the Commonwealth.

IN

"1st.

'N this case the District Court of Petersburg adjourned to the general court, the following questions. "Whether any judgment of any inferior court in favour "of the commonwealth, on a prosecution for a misde66 mesnor, can be reviewed and reversed by a district court "either on an appeal or by a writ of supersedeas: and "2dly, Whether according to the correct interpretation "of the act of general assembly, intitled 'an act to re"duce into one the several acts concerning the establishment, jurisdiction and powers of district courts,' the "costs be a part of the value of a judgment so as to give a district court jurisdiction, and power to reverse it."

June 25, 1810. The general court, consisting of Judges Nelson, White, Stuart and Coalter, decided, "That no "judgment of an inferior court on a presentment for a "misdemesnor can be reviewed and reversed by a supe"rior court either upon appeal, or supersedeas, the com"mon law writ of error being the only way in which "such judgment can be reviewed and reversed; which "writ of error may issue without any regard to the costs "or value of the judgment, and without the assent of the "attorney for the commonwealth."

The Commonwealth against John Somerville.

THE

HE defendant was indicted at the District Court of Morgan Town, in May, 1808. The indictment consisted of three counts, of which the first and third only were found true. The first count set forth that the defendant bearing in his heart great and rancorous malice, and ill will towards John G. Jackson, made an assault on the said John G. Jackson, and him did beat, wound and ill treat, "and that the said John Somerville with a certain "hickory club which he the said John Somerville in his

right hand then and there had and held did give and "strike the said John G. Jackson a grievous blow on the "right side of the head of him the said John G. Jackson, 66 thereby maiming and disabling him the said John G. "Jackson by fracturing the scull of him the said John "G. Jackson, and other wrongs and enormities to the "said John G. Jackson then and there did to the great "damage, terror, and danger of him, &c. against the peace and dignity of the commonwealth." The second count was a charge for a simple assault and battery.

The defendant, in September, 1808, filed a plea to the jurisdiction of the court, which set forth as a cause why the district court should not take further cognizance of

the bill of indictment, that the assault and battery in the last count charged is the same maiming and disabling by fracturing the scull as in the first count is contained and charged, and that the offence, if committed, was done in Harrison county, and that after the commitment of the offence, an examining court for Harrison county was held on the said defendant, on a charge of having feloniously, by lying in wait, disabled the head and right arm of Jackson with intent to disable and kill, and that the examining court were of opinion that he was not guilty of the several charges alleged against him, and acquitted him of the same, and further ordered him to enter into a recognizance to appear at the next quarterly term of Harrison court, to answer such charges as might then be brought against him, and also for his good behaviour; that the defendant entered into the recognizance, and also appeared at the next quarterly term for Harrison county in discharge of his recognizance: profert of the record of the examining court was then made, and the defendant further averred that the fact for the examination whereof the said examining court was held, and the fact charged in the indictment, are one and the same and not several; that the charge for the answering whereof he was recognized, and the offence charged in the indictment are one and the same and not several, and therefore the said defendant for plea saith that the offence charged in the indictment is cognizable in Harrison county court and not elsewhere, and concludes with a verification.