
    *Joseph Chew v. The Justices of Spottsylvania.
    Justices of Peace — Removal from County — Mandamus. —The removal of a Justice of the Peace, with all bis family, from his county to another, and remaining- there for several years, (although he afterwards returned.) is either an abandonment, virtual resignation, or forfeiture of his office, and whether void, or only voidable by a Judicial proceeding eventuating in a judgment of amotion, no Mandamus ought to issue to invest the applicant with an office not belonging to him, if void, or which might be taken from him, if voidable.
    The Plaintiff, Chew, applied to the Superior Court of Eaw for Spottsylvania county for a Mandamus. In support of his motion, he produced copies of two Orders of the County Court of Spottsylvania, the first bearing date January 7th, 1794, by which it appeared, that a Commission appointing the said Chew, with others, Justices of the Peace for said county, was produced, and that the said Chew qualified in open Court as a Justice. The second hears date April 6th, 1818, and states, that “Joseph Chew, regularly commissioned a Justice of the Peace for the county of Spottsylvania, this day appeared in Court, and took his seat on the Bench as a member thereof, and the said Chew admitting', that since his qualification as a Justice under the Commission aforesaid, he had removed with his family out of the county aforesaid, and resided in the other, several years, and has since returned and resided for several years in this county, where he now resides. A question was made by the Court, whether the said Chew, under those circumstances, was still a Magistrate, and it was decided by the Court that he was not; to which decision, the said Chew excepted.” The Superior Court then awarded a Summons, to the Justices of Spottsylvania to be directed, commanding them to appear at the next Term, to shew cause, if any they, could, why a Mandamus should not issue, requiring them to admit the said Joseph Chew to the exercise of his office of Justice of said county. At the next Term the Justices appeared and made a return to the Rule made upon them, to the following effect: “That the said Joseph Chew being in the Commission of th,e Peace for the county aforesaid, removed himself and all his family to the county of Orange, and continued to reside in that county several years, by which removal and residence the Justices of Spott-sylvania considered the said Chew as having vacated his Commission, &c. and although he returned with his family into the said county of Spottsylvania, yet *they could not think him entitled to act as a Justice until he received a new Commission, it being a custom to recommend others to supply any vacancy occasioned by death or removal out of the county.”
    The Superior Court of Spottsylvania adjourned the question arising from the return of the Justices, and particularly the following questions, to the General Court, for their advice and opinion :
    1. Does the permanent removal of a Justice from his county, or a removal without the intention of returning, vacate the Commission of the said Justice, and disqualify him' from acting as a Justice, if he should after-wards return and settle in the said county ?
    2. Does a removal from the county where he resides, to another county, disqualify him from acting in the first county ?
    3. Does such a removal as is mentioned in the first question, operate as a resignation, or renunciation of the office, so as to vacate it ?
    4. If the said questions be answered in the negative, is the Mandamus the proper remedy to admit or restore the said Justice to his office, if the other Justices refuse to admit him to a seat on the bench ?
    
      
      Justices of Peace — Removal from County — Manda--, mus. — The principal case holds that where a justice of the peace removes from the county, such removal is a virtual resignation or forfeiture of his office, and a mandamus will not issue to invest him with the office upon his return to said county, upon this question the principal case is cited and followed in Amory v. Justices of Gloucester, 2 Va. Cas. 526; Poulson v. Justices of Accomack, 2 Leigh 805 [743]; Bunting v. Willis, 27 Gratt. 160, 161. See foot-note to Ex parte Morris, 11 Gratt. 292. See monographic note on “Justices of the Peace” appended to Wallace v. Com., 2 Va. Cas. 130.
    
   The opinion of the Court is as follows :

“The Court not deeming it necessary to decide the abstract propositions stated in this Case, do decide, that no Mandamus .ought to be awarded, because such a removal, as is stated in the record, is either an abandonment, virtual resignation, or a forfeiture of the office of Justice of the Peace; and whether void or voidable by a- Judicial proceeding, eventuating in a judgment of amotion, no Mandamus ought to issue to invest the applicant with an office not belonging to him, if void, or which might be taken from him, if voidable. Which is ordered to be certified, &c.”

Note (in edition of 1853). — By the Act of the Session of 1821, ch. 26, the removal, with a bona fide intention of changing his residence, is declared to he an absolute vacation of the office.  