Matilda v. Mason & Moore

The Court (Cranch, C. J., contra,') gave the instruction as prayed ; but the jury found a verdict for the defendants. The Court granted a new trial without costs.' The cause came on again to be tried at April term, 1823, when the same instruction was given, and the jury found a verdict for the petitioners. The defendants took a bill of exceptions, which after stating the facts, and instruction given as above, proceeds thus : “ And thereupon the defendants insisted and contended before the jury that the facts given in evidence as aforesaid, do not impose upon the defendants the necessity of proving by substantive evidence, that the said James Craik had taken the oath prescribed by the Act of the General Assembly of Virginia, passed in the year 1785, c. 77, within the time prescribed by that act; and that the jury, upon the said state of facts, ought not to^ find for the petitioner for the want of such substantive proofs on the part of the defendants. 2d. That the jury, under the circumstances so given in evidence, may presume that the said James Craik had taken the said oath in the prescribed time; But the CouRT, upon the motion of the petitioners, overruled all .the points so insisted upon and contended for by the defendants, and stopped the defendants’ counsel from proceeding to maintain the points, or any of them, so insisted upon and contended for, before the jury, by the defendants.” [346] Upon a writ of error the judgment in this case was reversed by the Supreme Court of the United States, and a venire facias de novo awarded. 12 Wheat. 590. Memorandum. The case of Abraham v. Matthews, 6 Mun. 159, cited by Mr. Justice Johnson, in delivering the opinion of the Supreme Court, in this cause in 1827, was not brought to the notice of the court below.