Justice v. Commonwealth , 2 Va. 171 ( 1819 )

This was an application for a Writ cf Error to a judgment of the Superior Court of Eaw for Tazewell county. The petitioner was indicted for obstructing the public highway, by building a fence on and across the same, and continuing the same for the space of eight days. The jury found the Defendant guilty, and the Court rendered judgment for thirteen dollars, and thirty-three and one third cents, the fine ascertained by law for his offence aforesaid.

The Eaw declares, that “where any fence shall be made across a public road, the owner or tenant of the land shall pay ten shillings for every twenty-four hours the same shall be continued.” 1 Rev. Code of 1792, ch. 19, § 9. ^(a)

The petitioner alleged that the judgment was erroneous, for the following reasons: 1. That the Law fixes the penalty at ten shillings, and therefore the Superior Court has no jurisdiction: the Superior Court might as well take jurisdiction where twenty oaths had been sworn, which in the whole would amount to more than five dollars, or two hundred weight of tobacco. 2. The penalty can only be recovered by warrant, petition, or action, and not by indictment. See Hendrick qui tam v. Andrick, &c., Virginia Cases, 267. 3. The verdict is insufficient in not fixing the time and the fine. 4. That there is no such penalty fixed by Eaw as that mentioned in the judgment.

Notwithstanding which allegations, the Court was of opinion that there was no error in the judgment, and therefore refused the Writ of Error.

(a) 2 Rev. Code of 1819, ch. 236, § 11, p. 238.