
    The Commonwealth v. Thomas Flint.
    Commonwealth’s Attorney — Fee—Penalty in Discretion of Jury. — The fee of Attorney for the Commonwealth, in the Superior Courts, in cases of conviction for offences where the penalty is not ascertained by Law, hut rests in the discretion of the jury, is ten dollars, although the fine actually imposed by the jury, is less than thirty dollars.
    Adjourned Case from Botetourt. It was an Indictment for an Assault and Battery, and a conviction, the fine assessed by the jury was one dollar only. The question was, what fee should be taxed in the bill of costs, against the Defendant, for the Attorney prosecuting for the Commonwealth; *whether ten or five dollars ? The Law of 1815  provides, that where judgment shall be rendered in a Superior Court for a misdemesnor, “ the penalty whereof is not ascertained by Law to be less than thirty dollars, there shall be taxed in the bill of costs, a fee, for the Commonwealth’s Attorney, of ten dollarsand in any other case, where it hath heretofore been used to tax an Attorney’s fee, it shall be five dollars. In prosecutions for Assaults, the penalty is not ascertained by Law, at all; the • fine rests with the discretion of the jury.
    
      
       1 Rev. Code of 1819, ch. 69, § 67, p. 241.
    
   Per Curiam.

‘1 In taxing the costs upon the said judgment, the Clerk should have taxed for the Attorney, prosecuting for the commonwealth, a fee of ten dollars.”  