Taylor v. Tolwin, 1 N.C. 194, 1 Mart. 194 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 194, 1 Mart. 194

Taylor vs. Tolwin.

Trin. 2 Car.

IN an action on the case in C. B. for words in Haswel, in Suffolk; on the general issue, it was found for the plaintiff, and judgment was given, and error was brought here, eo quod the plaintiff being within age, appeared by attorney. The defendant in error, and the plaintiff in C. B. replied, that he was of full age at the time of the appearance, &c. and on a venire facias, from Haswel, it was found that the plaintiff was of age. Now it was said that it was a miss-trial, not being aided by any statute.

Doderidge, J. and Whitlock, J.

concurred. The statute 21 Jac. c. 13. p. 372. does not help this, for it aids only where the venire facias is of one place, where it should be of both, or e converso. But here is no place from which the venire is to be.

Doderidge, J. The statutes of Jeoffails have always been construed literally.

Adjournatur, the other Judges being absent.

And afterwards the court being full, was of the same opinion.

Hitcham, Serj.

prayed and obtained a repleader: for there could be no new trial. But if there had been an issue made, and a miss-trial, they would have awarded a new venire, and not a repleader. Godb. 469. 382. Bayneham's case. 5 Coke 36.