1832. June Term. Nutter's Case. The second count charged an assault with a knife with intent, feloniously, wilfully and unlawfully and of his malice aforethought, to kill and murder the said Ku ner. The third count charged the assault with a club as in the first count; and the fourth count charged the assault with a club as in the second count. The fifth count charged that the said Thomas Nutter, with malice aforethought, in and upon David Kuner, then and there being, feloniously, wilfully and unlawfully did make an assault, and with a certain knife which he, the said Thomas Nutter, in his left hand then and there had and held, being drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with said knife, with intent then and there feloniously and unlawfully to commit the crime of murder upon the body of the said David Kuner, had he not been prevented and arrested from so doing, contrary to the form of the statute, &c. The prisoner, upon being arraigned, moved the court to quash the indictment; but the court overruled the motion, with liberty to the prisoner to renew it at the next term of the court. The prisoner thereupon pleaded "not guilty"; and the case was continued. At the next term of the court the prisoner moved for leave to withdraw his plea of "not guilty," which was granted. And thereupon he moved the court to strike the cause from the docket, because the finding of the indictment was not recorded. The ground of this motion was that in the order book of the court the four words, "presented an indictment against," had been erased. It appears from the statement of the clerk that after he had written the words he had erased them by drawing his pen repeatedly across each of the said words, and had then rubbed his finger over them, causing a blot for their whole length; he intending to have interlined them, but the interlineation had never been made by person. him or any The court waived the decision of the question for ⚫ the time; and thereupon the prisoner demurred generally to the indictment and to each count thereof; and the attorney for the Commonwealth joined in the demurrer. Wherefore, as in the opinion of the court some of the questions arising on the demurrer were new and difficult, and involved the true meaning and interpretation of § 10 of ch. 199 of the Code of Va., p. 750-51, the court, with the consent of the prisoner, adjourned to this court the following questions: 1st. What judgment ought the court to give upon the prisoner's motion to strike the case from the docket. in consequence of the non-recording of the finding of the indictment as alleged by the prisoner under the circumstances aforesaid? 2d. Do the first and fifth counts, or either of them, set forth such an attempt to murder as to make the attempt to murder set forth in either of them a felony? 3d. If either of them does set forth such an attempt to murder as to make the attempt a felony, are the matters therein contained set forth in such legal and orderly manner as that the demurrer to the first and fifth counts ought to be overruled? 4th. What judgment ought to be rendered on the demurrer to each count of the indictment, and on the demurrer to the whole indictment? Fisher, for the prisoner. 1852. June Term. Nutter's Case. 1832. June Term. Nutter's FIELD, J. delivered the resolution of the court. The court is of opinion and doth decide, in relation to the first question adjourned, that the court ought to overrule the motion to strike the case from the docket. In relation to the fourth question adjourned, that the demurrer to each count and to the whole indictment ought to be overruled. And in relation to the other two questions adjourned, the court declines to express any opinion; as these questions are, in the opinion of the court, prematurely adjourned. 1832. June Term. COMMONWEALTH . WEBSTER. June 29th. 1. The common law writ of capias pro fine is unrepealed, and may be used by the Commonwealth. 2. Where there is a judgment in favour of the Commonwealth for a fine and costs of prosecution, the writ may issue for the fine and the costs; but where the judgment is for costs without a fine, the writ is not a proper process to enforce the judgment. 3. Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from imprisonment by paying the fine and costs. But the term of his imprisonment under such capias is limited by the provision in the Code of 1849, ch. 209, § 17, p. 781*. At a special term of the Circuit court of Jackson county, held in January 1852, Samuel S. Webster ap *This act provides, "If a person who is sentenced to be confined in jail a certain term, and afterwards, until he pay a fine and the costs of prosecution, fail to pay such fine and costs before the end of said term, he shall continue in confinement until the same be paid or his discharge be ordered by the court. But the additional continement shall in no case exceed six months from the end of said term." 1832. June Term. Case. plied to the court for a writ of habeas corpus ad subjiciendum, to be delivered from imprisonment in the jail of the county. The writ was issued; and the sheriff webster's made a return thereon that Webster was in his custody by virtue of a commitment on four several writs of capias ad satisfaciendum issued from the clerk's office of the Circuit court of Jackson for fines and costs in cases of the Commonwealth against him: And he made the writs and the returns thereon a part of his return to the writ of habeas corpus. Two of these writs were for fines imposed upon Webster in prosecutions for misdemeanor, and the costs of the prosecutions; the other two writs were for the costs of other like prosecutions where no fine had been imposed. Upon the return to the writ the court, with the consent of the parties, adjourned to this court the following questions: 1st. Whether a capias ad satisfaciendum can issue in behalf of the Commonwealth against a person convicted of a misdemeanor, on a judgment against him for a fine and costs. 2d. If such capias can issue, is there any means by which he may discharge himself without paying the fine and costs. LOMAX, J. delivered the opinion of the court. At common law the crown, for the recovery of its debts, could issue executions against the persons, and the goods and profits of the lands, and the goods and chattels, and the lands, of its debtors. That is, it might issue an execution of capias ad satisfaciendum, or of levari facias, or of fieri facias, or of extendi facias : And it might in one combine all these writs. In the case of a subject, whilst the writs of fieri facias and levari facias were the process of execution by which in all cases the judgments might be enforced, yet the subject also might have the execution of capias ad satis 1852. June Term. Case. faciendum in all recoveries for wrongs committed with force; and the extendi facias for recoveries against an Webster's heir for the debt of his ancestor. These executions, all of them, existed at common law; and however the statute may have enlarged the number of cases to which some of them were made applicable, they were common law, not statutory, process. The writ of elegit was purely statutory. For the recovery of fines to the king, the usual process was against the person of the offender by capias pro fine, if he did not pay the fine which had been assessed, and against the goods and profits of the lands by lerari facias. 2 Gab. 606; 1 Chit. Cr. L. 660. It is stated in the latter of these authorities that the imprisonment under the capias pro fine was, in respect of such fine, not as a debt, but a punishment for the crime, until the fine was paid. It is true that a capias pro fine is an execution to compel the payment of the fine, as the capias ad satisfaciendum is to compel the payment of the debt. Notwithstanding that point of resemblance, these two species of process were never confounded in practice; and were kept signally distinct in the views of the legislature, in many provisions made relating to the operation and the incidents of a capias ad satisfaciendum. In the original structure of the two writs the levy of the ca. sa. was made a direct satisfaction of the debt; but in the frame of the writ of capias pro fine the imprisonment did not purport to be a satisfaction of the fine; it was a part of the punishment; and the fine still remained in full force, and could only be redeemed by satisfaction of the fine whenever it might be made. The frame of the writs of ca. sa. in its teste and return and the interval between them was also distinguished from the other writ. The levy of the ca. sa. was attended with consequences that do not seem ever to have attended the imprisonment under the capias pro fine-such as the effect of a voluntary enlargement of the prisoner to dis |