The record of the examining court is copied into the record, by which it appears that he was examined as set forth in the plea, and acquitted, and recognized to appear at the next quarterly court for Harrison county. The record of his appearance at the next quarterly court for Harrison county is also copied into the record; it merely states that he appeared, and the prosecutor not appearing he was discharged.

To this plea to the jurisdiction the attorney for the commonwealth demurred, and there was joinder.

The district court sustained the demurrer, and thereupon the defendant pleaded not guilty, and issue was taken on it.

At the circuit court held for Harrison county in May 1809, the defendant appeared and filed a special plea to the indictment. It was a plea of autrefoits convict, and set forth that Jackson had presented a bill of appeal in Harrison county court for the said mayhem (with which the indictment charged him) against the said John Somerville and others, and had recovered damages to the amount of 388 dollars, against the said Somerville, and therefore that the said defendant was formerly convicted of the said mayhem, and prays judgment and that he be discharged. There was no replication to this plea, but at

the October term, 1809, a case was agreed by the prosecutor and the defendant, by which it was stated “ that an action was prosecuted by the prosecutor John G. Jackson against the defendant John Somerville for the same offences charged in the indictment of which the following is a record copy, and submit to the court if it be a bar to the prosecution on the indictment." Then follows the record of the action which consists of a declaration, plea, issue, verdict and judgment. The declaration contained two counts, the first whereof charged the defendants, that they assaulted the plaintiff in the night time, secretly, and by lying in wait, with force and arms, to wit, clubs, guns, pistols, &c. and beat, wounded, and ill-treated him, to wit, by giving him so many and grievous wounds, blows, and bruises on the head, right arm, and body of the plaintiff, that they broke and fractured his scull, and bruised and disabled his right arm, by reason whereof he was greatly injured and disabled and his life despaired of, and his business neglected, and great expense was incurred in and about his recovery. The second count charged a simple assault and battery. Upon this agreed case being argued, the court overruled the plea of autrefoits convicts.

At the same term another special plea was offered by the defendant. It set forth that he had been examined for the offence charged in the indictment, by a court of jus

tices for Harrison county, and that upon such examination he was acquitted. This plea of former acquittal, was also overruled by the court. Whereupon the defendant was tried on his plea of not guilty; the jury found him guilty, and assessed his fine to twenty dollars.

The circuit court then adjourned the case to the general court, for their consideration, on the following points.

1st. Whether the first count of the indictment be good.

2d. Whether any plea of a former acquittal of the offences contained in the first and third counts, or either of them is supported by the record of the examining court of Harrison; which record is certified.

3d. Whether, if such plea mentioned in the second point could have been so supported, the reception thereof was precluded by the plea in the record contained and overruled by the district court at Morgan Town.

4th. Whether the agreed case and record therein referred to and here with certified, will support the plea filed of a former conviction upon an alleged appeal in Harrison county court.

The general court, November 13th, 1810, consisting of Judges William Nelson, White, Carrington, Brooke, Holmes, Coalter, Hugh Nelson, and Brockenbrough, declared it to be their unanimous opinion, " 1st. That the "first count in the indictment in the record referred to, "is not a good count for mayhem, but that it is good as a count for an assault of an aggravated nature.”

"2d. That any plea of a former acquittal of the offences "in the first and third counts, or either of them, is not "supported by the record of the examining court of Har"rison county."

"3d. That it is unnecessary to decide the third point "adjourned, as any plea of a former acquittal is not "supported by the record."

"4th. And as to the fourth point, that the agreed case "and record referred to, will not support the plea of a "farmer conviction upon an alleged appeal in Harrison "county court."

Y

The Mutual Assurance Society against Anna Byrd.

PHILIP

Barraud had under his hand and seal, bearing date 18th April, 1796, declared for assurance of a house situated in Williamsburg. He afterwards conveyed the property to the defendant by a deed which was regularly recorded in April, 1801. Barraud did not assign to her the policy of assurance. A half quota, amounting to thirteen dollars and seventeen cents, became due on this property the first day of June, 1805, under the declaration of Barraud. The society moved against the defendant for judgment for the said half quota, and the Circuit Court of James' City adjourned the case.

The general court, November 16, 1810, consisting of Judges White, Coalter, Hugh Nelson and Brockenbrough, certified their opinion to be," that the defendant appear"ing by the evidence to be a purchaser from P. Barraud "of property actually assured, a recovery by motion may "be had against her for the half quota due, under the "declaration of the said Barraud, although it does not appear that the said Philip Barraud had assigned his policy to her, if the evidence be sufficient in other respects to support such motion."

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