
    Faris vs The Commonwealth.
    Case.
    Error to the Washington Circuit.
    
      September 27.
    
      Harlan dy Craddock for Faris: Gales, Attorney General, for the Commonwealth.
    
      Case 26.
    
      Gaming. Capias pro fine.
    
    Though a fi. fa. issue on a judgment for a fine assessed foi gaming, and the right to issue a capias pro fine is suspended, yetif the property levied on be rescued by the defendant, the suspension, ceases.
    By the statute of 1833, sec. 7, the Court have the right to order the defendant, convicted,ofgaming, to jail forthwith, on his refusal to pay the fine assessed.
   Chief Justice Robertson

delivered the opinion of the Court.

Although the levy of the fi. fa. on the horse of Faris operated as a suspension of the right to issue a capias pro fine, as long as that levy was undisposed of or the horse was withheld from Faris; yet when he secretly rescued the horse and concealed it, the suspension ceased and the capias was legally and properly issued.

The Circuit Judge ought not, therefore, to have quashed the capias and the return of executed thereon; and consequently, though the Judge did quash, Faris should not complain that he was remanded to jail: 1st, Because the quashal was improper; and, 2d, Because, had it been proper, the Judge had authority under the 7th section of the act of 1833, against gaming, to order him to prison, he being in Court and failing to pay the fine adjudged against him.

Judgment affirmed.  