THE attorney-general, on behalf of the commonwealth, filed an affidavit and moved for a summons against Raphael Lancaster, clerk of the Spencer circuit court, preparatory to his removal from office; because, when appointed thereto, he was ineligible, on the following grounds, to wit: That he. was á member of. the house of representatives, at the session when the act of assembly entitled “an act to establish the county of Spencer,” was passed, by which said clerk’s office was created, the same being a civil office of profit under the commonwealth; and at the time of his appointment, he was a citizen and resident of the county of Washington, and not a citizen and resident of the county of Spencer.

The Chief Justice delivered the opinion of the court,

The case of the Commonwealth vs. Barry, Hard, 220, is decisive, to show that the mere want of qualification to be appointed, or to hold the office of clerk, is not a ground for a prosecution for a breach of good behaviour.

Motion for a process overruled.