236

Court of Appeals of Virginia.

chap. 174, of the Revised Code; against John Preston andnine persons, his sureties, on a bond given in conformityBaker with the 9th section of the same act.(a) The conditionfor'the'coni- ^ ie bond, after reciting that Preston had been electedmonwealth Treasurer, concluded, “ now if the said John Preston

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Preston and “ shall faithfully account for all monies and other thingsothers, u which shall come to his hands in virtue of his office,“ and perform all other articles thereof according to law,“ then this obligation to be void, otherwise to remain in“ full force and virtue.”

The notice of the motion recited the bond, and the con-dition; averred that it had not been complied with, andclaimed the penalty of one million of dollars*

There was no appearance for John Preston the princi-pal. The sureties appeared by counsel, and the follow-ing pleadings were made up.

The 1st plea craved oyer of the bond, which beingread, was incorporated into the plea. The election ofJohn Preston to the office of Treasurer on the 18th dayof January 1819 (the date of the bond) and the deter-mination of his office on the 17th January 1S20, and theelection of Jerman Baker as Treasurer on that day were

called, to take out the sum-mons.

When the court above, was or-ganised, and before its proceed-ing to act, Leigh made a question,whether the court was legallyconstituted; since Judge Biiookehad withdrawn, without being in-terested in the matter, or underany permanent disability to sit;being unwell, and having a sickfamily. It was urged, that thelaw contemplated some durableimpediment, and not a temporaryincapacity, which might be ob-viated by a continuance of the

cause. The motion being sub-mitted, the Judges withdrew tothe conference room to deliber-ate: after a few minutes they re-turned. and were unanimously ofopinion, that the objection shouldbe overruled, and that the courtas constituted, should proceed tohear and determine the cause.

(a) It will be observed, that thewords, “ and every year there-after,” were incorporated into thestatute after the execution of thebond.