Opinion
Spring Sessions, 1837.
CERTIORARI.
Cullen for plaintiff in error.
Record. " Willey vs. Stayton. Summons issued 23d Oct. 1835, for $12, in an action of trespass, for damage done in carrying away corn out of lot of ground as per account filed; returnable 30th October, instant, when the parties appeared and plaintiff asked a postponement, which was granted, and the case continued to 13th November next; when the parties appeared again, the case was referred. Referees report no cause of action. Judgment. December 25th 1835, the plaintiff appeared and craved a second trial by referrees, which is granted. Trial had and report and judgment for plaintiff for $8 25.
Exceptions: — 1st. That the summons issued in an action of trespass without any written statement of the injury complained of. 2d. That the justice granted a new trial in an action of trespass, which by law he could not do. ( Digest 360, 326.) 3d. Because it does not appear that the referees were sworn, which has been decided to be a fatal error. Ray use of Moon vs. Hall, 1 Harr: Rep. 106.
The Court directed a reversal, on the ground taken in the second exception, thereby deciding that a justice of the peace cannot grant a new trial in an action of trespass.
Judgment reversed.