the general court. "First, whether a judge out of court "hath a right, when he hath reason to suspect a duel is "about to take place, to punish a witness who may re"fuse out of court to give testimony, if the party accused "be not before the judge, and if so, in what manner: "Secondly, hath he such right, when the party accused "is before the judge."

The general court, June 17, 1812, certified it to be their opinion, "that a judge out of court hath a right, when "he hath reason to suspect a duel is about to take place, "to commit a witness who may refuse out of court to "give testimony by affidavit, when the party accused is not before the judge, until he shall give testimony, and "that a fortiori, such power exists when the party ac"cused is before the judge."

The Commonwealth against John M'Caul. THE prisoner was indicted in the Superior Court of

law for Henrico county, in April 1812, for the feloni

ous stealing, taking and carrying away from the treasury of the commonwealth, and from the custody of John Pres

ton the treasurer, a large sum of money, to wit, seventeen thousand dollars in bank notes, and seventeen silver crowns of the value of eighteen dollars seventy cents, of the current coin of this commonwealth. He was convicted by the jury, and on the last day of the term, the following order was made by the superior court.

"At a superior court of law held for Henrico county at the Capitol in the city of Richmond, on Saturday, April 25th, 1812.

"John M'Caul, late of the parish of Henrico, in the county of Henrico, yeoman, who stands convicted of grand larceny, being again led to the bar in custody of the jailor of this court, by his counsel moved the court to set aside the verdict found against him by the jury, and to award him a new trial, on the ground of misbehaviour of one of his jurors as set forth in the affidavits of James Bailey, Benjamin Sheppard, and John Morris, officers of the court, and of Frederick Clarke and John Lee jurymen, and of Peter Moseley tavern-keeper, all of which affidavits are ordered to be filed among the records of this court: whereupon the court doth certify that the trial of the said M'Caul continued from Tuesday the eighth day of the court to Friday night the eleventh day of the court, and that this court by consent of the prisoner, his counsel and the attorney for the commonwealth, on the second,

third and fourth days of the trial made a temporary adjournment of short duration about the hour of two in the afternoon, and that a general order was given by the court to the jury and the officers on the first evening of the trial, that the jury should on their being adjourned, be kept together, and not separated; and the court with the consent of the prisoner doth adjourn to the general court, as a question of novelty and difficulty, this point: "Whe"ther such a separation as is proved by the aforesaid "affidavits, copies of which are hereby directed to be "transmitted to the said general court, be sufficient cause "for vitiating and setting aside the verdict aforesaid."

The following are true copies of the affidavits referred to in the foregoing order.

James Bailey made oath in open court, that on the second day of the impannelling the jury in the case of the commonwealth against M'Caul, he as sheriff was attending the jury from the room in which the court sat to one of the jury rooms, for the purpose of receiving some refreshments, ordered by the court during the temporary ad

* This order was made at the request of the counsel, to enable the court to proceed with the cause to a late hour in the night, it being seen that the crowd of witnesses, and the length of the examination, would spin it out to the length of three or four days.

journment of the court; that before they got to the jury room, one of the jury, to wit, Frederick Clarke, said that he would go home, and get his dinner; he was admonished not to separate himself from the jury; he insisted on going, and advanced towards the steps which led down from the portico of the Capitol to the square; at the head of the steps this affiant took hold of his arm, and told him he must not go; he said he would. The affiant returning to the jury whom he had left in the midst of the crowd, and finding Clarke not to obey the order, returned to the door to see where he was, looked down towards the main street when he saw said Clarke going down the Capitol hill, and he had then gotten about half way to Bosher's shop. In about fifteen or twenty minutes he returned. Whither he went this affiant knows not.

Benjamin Sheppard being sworn, said that he was not in the Capitol at the time of Mr. Clarke's separation from the jury on Wednesday, he having gone to the Virginia inn to order some refreshments for the jury. When he returned, Mr. Bailey informed him that Mr. Clarke had absented himself. Question: What sheriffs were attending the court on that day at the time of the adjournment? Answer: Mr. Bailey and myself only. Question: When you went to the jury room, did you find Mr. Clarke among the jury? Answer: I did not. Mr. Clarke returned

to the jury room when the rest of the jury were nearly done taking their refreshments.

John M. Morris being sworn, said that he knew of no separation of the jury sworn on the trial of M'Caul other than those stated in the affidavit of Frederick Clarke, except that Nathaniel Charter (another jury-man) went attended by the deponent to visit his family on Thursday morning, stating that one of his children was very sick; that he was absent from the jury room about twenty minutes. That said Charter was not in his presence during all the said twenty minutes, he having gone up stairs to see his family, while the affiant remained below. Question: Do you know who were in the room up stairs to which Charter went? Answer: I do not. Question: How long was he out of your presence? Answer: About five minutes. The deponent knows nothing of the separation of Mr. Clarke from the rest of the jury on Wednesday, the deponent not being in the Capitol at the time of adjournment on Wednesday.

Frederick Clarke being sworn, said that he was absent from the other members of the jury sworn for the trial of John M'Caul about twenty minutes on Wednesday last, and that it was during the adjournment of the court for the said space of twenty minutes. That during the said absence he was asked by several persons whether the