which may be given in, uninfluenced by the rumours he has heard; that the opinion he had formed was, that if the prisoner had stabbed the deceased under the circumstances which he had heard, he ought to be punished. 2. The other juror states, that he has made up no decided opinion; that he has heard a part of the evidence of one witness, and formed an impression, and if the balance of the testimony should run in that way, that impression would be confirmed; that as far as the evidence went, he has a decided opinion, if the rest should not run against it, but that he has no prejudice, has not expressed any opinion, and is prepared to decide the case according to the evidence which may be given in, uninfluenced by the portion of evidence he has heard: Held, both the jurors are competent. Moran v. Com. 9 Leigh, 651.

On a trial for felony, a juror, being examined on his voir dire, states, that he was not present at the examining court, but has heard a report of some of the circumstances of the case; that he does not know that the report came from any one who heard the evidence at the examining court, nor does he believe it to be a full detail of all the circumstances, but he believes it to be true, and upon that belief has formed and expressed a decided opinion, which is still abiding on his mind, but he believes that notwitstanding what he has heard, his mind is open to conviction, and he has no doubt that if the facts should turn out to be different from what they have been represented to him, his opinion would be changed: Held, he is a competent juror. Maile v. Com. Ibid. 661. As to the duty of the court, see Sargent v. Roberts et al. 1 Pick. R. 337.

After the jury had retired from the bar, and before they had rendered their verdict, they left the jury-room and dispersed over the court-yard, during a temporary recess of the court, and afterwards rendered a verdict for the defendant: verdict set aside.

Howles's adm'r v. Dunn & Co. 1 Leigh, 455. But see Ragland v. Wills's adm'r, 6 Leigh, 1, 6 and 7.

A jury agree on their verdict, and it is signed by the foreman, but the justices not being on the bench at the time, two of the jurors separated from their fellows and left the court-room about two minutes, and conversed with persons not their fellows, though not on the subject of the cause: on the justices resuming their seats the verdict is rendered: Held, such separation is no cause for setting aside the verdict. Ragland v. Wills's adm'r, 6 Leigh, 1. In this case J. Carr seems to doubt the soundness of the decision in Howles's adm'r v. Dunn & Co. 1 Leigh, 455; and Tucker, Prest. denied it to be law. See his remarks, p. 7, 8, and Lord St. John v. Abbott, Barnes's notes, 441.

The separation of the jury before any evidence has been introduced, is not sufficient cause to set aside the verdict. Abner Martin's case, gen'l ct. Nov. T. 1830, 2 Leigh, 475; especially, as the separation was so momentary, that any tampering with the jurors was hardly possible.

After a conviction for felony, the court may grant a new trial, if satisfied that the evidence was utterly insufficient to warrant the finding. Alice Ball v. The Com'th, gen'l ct. June T. 1837. This was a case of murder, tried in cir. ct. of Westmoreland. The judge of the court was of opinion that the power to grant a new trial in such a case is clearly denied by the principles and practice of the English law, and is not warranted by any stat. of Virginia or any adjudicated case. The general court admitted the rule in England to be as stated, but were unanimously of opinion, that this principle is no part of our common law, and that our courts are not bound by it. 8 Leigh, 726; see U. S. v. Pedro Gilbert et al. 2 Sumner, 19, 40 and 50, for the remarks of the judge (Story,) on the case of The Com. v. Green, 17 Mass. R. 515.

from office for misbehaviour in office, (as being intoxicated while in the discharge of his official duties) on information or indictment in superior court of law. The Com. v. Alexander, Virg. Cas. 156, 4 H. & M. 522, S. C.; The Com. v. Mann, Virg. Cas. 308. See act of February 1676-7, act 5, 2 Stat. Larg. 384.

(3) If a justice of the peace is appointed to, and accepts an office under the government of the United States, or any other incompatible office, he thereby ipso facto, vacates his office of justice; and his resignation of the incompatible office will not restore him to the office of justice; nor can he ever lawfully exercise the same without a new commission. The Com. v. Sherrard, 4 Leigh, 643.

(2) See The Com. v. Tate, 3 Leigh, 802. The office of deputy sheriff is incompatible with the office of justice of the peace, though by the statute law of Virginia, the office of high sheriff is not so; and the acceptance of the office of deputy sheriff vacates the office of justice. This section is declaratory of the law, as it existed anterior to its enactment.

(1) Does the acceptance of the office of coroner operate a forfeiture of his office of justice of the peace? If it does, yet such acceptance does not vacate such of his subsequent acts as justice, which have been performed before his qualification is established by some proper judicial proceeding for that purpose instituted. Maddox v. Ewell, general court, June T. 1817, 2 Virg. Cas. 59; see The Margate Pier Co. v. Hannam 3 B. & A. 266.

Whether the acceptance of the office of deputy clerk of a county court by a justice of the peace operates a forfeiture or not, the superior court will not grant a mandamus to compel the county court to admit the applicant to an office not belonging to him if void, or which might be taken from him if voidable. The office of deputy clerk of a county court, and justice of the peace of the same county are incompatible offices. Amory v. The Justices of Gloucester, gen'l ct. June T. 1826.

The conviction of a justice of the peace of a felony (ergo, malicious stabbing) operates a forfeiture of his office of justice not to be restored by executive pardon. Fugate's case, 2 Leigh, 724.

(a) Where the amount of a note or other claim exceeds a justice's jurisdiction, the party may relinquish by indorsement, credit, or otherwise, sufficient to bring the sum within the necessary compass. Coo. Just. 13; Bowditch v. Salisbury, 9 Johns. 366; Barnes v. Winkler, 2 Carr. & Pay. Rep. 345. A court for the recovery of debts under 40 shillings may give judgment for the plaintiff, although it appears that the debt was above 40s. if the plaintiff will waive so much of his debt as will bring his claim under 40s. If the plaintiff consents to waive the excess, and wishes to resort to a cheap tribunal for the recovery of the balance, I see no reason why he may not do so, provided there be nothing in the act constituting the court which prevents him. Per Chief J. Abbott.

But see Simpson v. M'Million, 1 Nott & M'C. 192; St. Amand v. Gerry, 2 Nott & M'C. 487, where it was held to be a clear and acknowledged principle of law, that consent cannot give jurisdiction; much less can the act of one party do it. A plaintiff cannot release a part of his demand to bring his case within an inferior jurisdiction. But if the sum is reduced by bona fide payments, the inferior jurisdiction may proceed.

And see M'Call v. Peachy, 1 Call, 55; Bogle et al. v. Fitzhugh, 2 Wash. 214; and Pennington's treat. on courts for the trial of small causes, p. 15.

In Huston & Smith v. Newton Hill: Prohib. to the mayor of Richmond, 21st October 1837, by judge Nicholas, circuit superior court of city, 28th March 1838. The judge held that a party may release so as to give jurisdiction to a justice-adopting the opinion of Abbott in Barnes v. Winkler, 2 Car. & Payne, 345. "The court is of opinion that if the holder of a claim or demand above the amount of twenty dollars, releases or waives his claim to all over that

sum, that he may do so, and that in that event, a single magistrate may exercise jurisdiction in the case. The credit or abatement entered on the note in this case would have had the effect to give jurisdiction to the mayor, or any alderman of the city of Richmond, if it had really waived or released all above the sum of twenty dollars; but it appearing to the court by calculations made, that after allowing the credit or abatement on the note, the principal sum due thereon exceeded twenty dollars, the mayor, for the reason last assigned, had not jurisdiction, &c." Per judge Nicholas.Note. It was admitted before the mayor that all had been released but $ 20—and the case was taken up for the sole purpose of settling the first point—the right to release or abate.

See the case of Moore v. Borden, circuit sup'r court Rockbridge, April T. 1838. Cor. Thompson, J. contra. Compiler 5th Oct. '38. If the penalty of a bond exceed twenty dollars, the justice has no jurisdiction, because, however small the condition, the judgment must be entered for the penalty. A. owed B. $80, and gave him four several single bills for $20 each, payable at one day, and one, two and three months after date, respectively; after the last bill became due, B. obtained warrants from a justice of the peace on each of the single bills, to recover their amount. A. applied to the superior court for a writ of prohibition to prevent the justice from proceeding, on the ground that all the bills constituted but one debt, and consequently he had no jurisdiction. Writ awarded by instructions of general court, judges Brockenbrough, Parker and Saunders dissenting. Huston v. Lowry et al. general court, June T. 1816, 2 Virg. Cas. 42. And if the judgments have actually been rendered, the executions levied, and the money in the hands of the constable, the prohibition ought to go, if the defendant has given notice to the constable not to pay over the money to plaintiff. Ibid. A. became indebted to B. in a sum not exceeding 40s. for the carriage of a parcel of goods; and in a month afterwards, incurred another debt to B. not exceeding 40s. for the carriage of a second parcel. A. brought two actions in the county court for the respective debts: Held, that the causes of action were distinct, and that A. was entitled to sue separately for each demand-and K. B. refused prohibition. The King v. The Sheriff of Herefordshire, in cause of Dealey v. Clark, 1 B. & Adolp. 672; Girling v. Alders, 1 Vent. 73, and

Amory, 1 Vent. 65, were cited by Archbold, but distinguished by lord C. J. Tenterden, who said, in delivering court's opinion: "That this case does not come within the rule of law, which prohibits the splitting of a cause of action into several portions, for the purpose of commencing suits for each in an inferior court; to be so, the cause of action must be one and entire. But in this case, the two items of £1. 4s. each are perfectly distinct debts, the one having no connexion with the other. When the defendant incurred the debt stated in the first item, the plaintiff might have sued him for it in the county court, and his having incurred another and distinct debt with the plaintiff afterwards, should not, I think, have the effect of depriving the plaintiff of his remedy in the county court for the first debt. And if he may still have that remedy for the first debt, he has it of course for the second also.”

A county court has no authority to award a prohibition in any case-and if it shall exceed its jurisdiction by granting such writ, the superior court of law may and ought, on proper application, to award a writ of prohibition to such county court, prohibiting the further exercise of such jurisdiction, or the enforcing any order or judgment made under colour thereof. Jackson v. Maxwell, general court, Nov. T. 1826, 5 Rand. 636.

*It shall not be lawful for any magistrate of the county of Henrico to issue a warrant for the recovery of any debt or damages by one citizen of the [said] city of Richmond against another citizen of the same city; such debts or damages shall alone be cognizable before the magistrates of the said city of Richmond. And it shall not be lawful for any constable appointed by the court of Henrico, to execute any warrant in any such case, or levy, within the said city, an execution issued on a judgment obtained thereon. Act Feb. 19, 1812, c. 91, § 1.

(4) Suppose the defendant substantiates a set-off exceeding the demand of the plaintiff, do these words authorize the application of the rule and practice in equity as recognized in the cases of Fitzgerald v. Jones, 1 Munf. 150; Todd v. Bowyer, 1 Munf. 447; Bodkin v. Clancy, 1 Ball & Beatty, 216-and justify a judgment for the balance against the plaintiff?

(2) An execution issued on a judgment rendered by a justice of the peace from the court of a county or corporation cannot be served by a constable except in the city of Richmond. Stokes v. Perkins, 4 Rand. 356.