William Edmiston, who as well for the Commonwealth, as for himself, prosecutes against Arthur Campbell.

THIS

HIS was a qui tam action of debt brought in the District Court of Washington, by the plaintiff against the defendant, to recover a penalty imposed by an act of assembly. The whole case is stated in the following special verdict: "We find that by a commission of the "peace bearing date the 21st December, 1776, Arthur "Campbell the defendent was appointed a justice of the "peace for the county of Washington, and as such on the "28th January, 1777, being the day appointed by an act "of assembly, for holding a court in said county, took "the oaths of a justice of the peace, and a justice of the "County Court in Chancery. That on the 31st day of "August, 1786, he the said Arthur was by virtue of au(6 thority of an act of assembly entitled 'an act to ex"tend the powers of the governor and council,' removed "from the office of a justice of the peace for the county "aforesaid, for misconduct, by the governor with the "advice of the council of state: [it then sets forth the "warrant of the governor, under the seal of the common"wealth, removing him from office, in hæc verba] where

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upon the said Arthur ceased to act as a justice of the peace: that in the year 1787, an act was passed entitled

an act respecting the appointment of county court "clerks, recommendation of surveyors, and for other "purposes,' declaring the act entitled 'the act to extend "the powers of the governor and council' unconstitution"al, inasmuch as by the former act, there is an interfer"ence between the executive, and judiciary, which "ought to be separate and distinct, so that neither exer"cise the powers, properly belonging to the other, and "therefore the same was repealed. Whereupon the said “Arthur did on the 15th September, 1789, presume to "execute the office of a justice of the peace, in and for "the county aforesaid, by exercising the authority and "performing sundry duties and functions, pertaining to "the same, without being qualified as the law directs by "virtue of any subsequent commission. We therefore "find for the plaintiff three hundred pounds current "money of Virginia, being the penalty inflicted on any

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person, who shall presume to execute the office of a "justice of the peace by an act entitled 'an act for "establishing county courts, and for regulating and set"tling the proceedings therein,' without being qualified "as directed by said act, if the law be for him; other"wise, we find for the defendant."

C

The question arising on this special verdict was adjourned; and at a General Court held November 19th, 1792, present, Parker, Henry, Roane and Nelson, judges, it was decided that "the law is for the defendant."

Note. This case is referred to by Judge Tucker in his edition of Blackstone's Commentaries. See his appendix to the 1st Vol. 1st part, page 125. The ordinance of convention, which authorized the governor and council to remove from office a justice of the peace, for misfeasance in office, or disaffection to the commonwealth, on a full and fair hearing of the parties, may be seen in the Chancellor's Revisal, p. 37. See also the same book, p. 81, ch. 5th, sect. 4th, by which the governor and council is empowered to remove justices of the peace for misconduct, neglect of duty, or mal-practices. The act repealing this last law, is only to be found in the acts of 1787, ch. 23. But although the executive cannot constitutionally remove a justice of the peace from his office, yet he may be removed for misbehaviour in office by judgment of a superior court of law. See the case of the commonwealth against John Alexander, decided by the General Court, June, 1808.

The Commonwealth against Philip Frye.

THE defendant was indicted for a misdemeanor under

the act of assembly, for receiving stolen goods, knowing them to be stolen. The jury found the defendant guilty, but did not assess his fine. The defendant prayed that judgment might be arrested, for the following reasons:

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1st, Because the indictment did not state, that the defen"dant feloniously took and received the goods: 2d, Because the jury ought to have assessed the fine, which "they have not done: 3d, Because it is not stated in the in"dictment, that the principal felons, or either of them, who "are stated to have stolen the goods, in the indictment "mentioned, had been convicted thereof: 4th, Because the "indictment is informal and insufficient." The questions of law arising from these alleged errors, were adjourned. The General Court, June 19th, 1793, consisting of Judges Tucker, Tyler, Henry, Roane and Nelson, certified the following opinion: "That judgment of impri"sonment may be rendered against the defendant, although the jury have not assessed his amercement, "which it was their province to have done."

Note. See 1st Vol. Rev. Code, p. 105, Sect. 26, by which the juries are directed to assess the fine. The

first, and third reasons assigned in arrest of judgment, are not noticed by the General Court; they are sufficiently answered by the act of assembly itself, on which the prosecution was founded. See 1st Vol. Rev. Code, p. 206, ch. 109, sect. 4th.

Peter Kamper against Mary Hawkins.

HE adjournment of this case originated in novelty and

THE

difficulty, touching the constitutionality, or judicial propriety of the judges of the District Court, carrying the following clause of an act of the General Assembly into execution, which was conceived to be opposed to, or in direct violation of the Constitution of the Commonwealth of Virginia.

The title and clause of the said act are thus: "An act "reducing into one, the several acts concerning the “establishment, jurisdiction, and powers of District "Courts." (Passed December 12, 1792.)