
    Brown against Clark.
    ALBANY,
    August, 1808.
    On the return °01.a Wfr0m court °f com" mon pleas to this court, the record itself is removed, and this couft, on a. reversal of the judgment below, may award a venire novo retumcuit.^But °ir" where it appearea tnattne sum demanded waf L^maíb that the plaintiff, if he recovered, would be obliged to pay the coste, the court refused to grant the venire de novo•
    
    GOLD, for the defendant in error,
    moved for a venire de novo to be awarded in this cause, or that the record be remitted to the court of common pleas of the county of Oneida, with directions to issue a venire de novo in that court.
    It appeared that Brown, the plaintiff in error, had recovered judgment in the court of common pleas of Oneida, against the defendant in error, on which a writ of error was brought to this court, on a bill of exceptions ; and that the judgment was reversed at the last term. • The bill of exceptions was merely to the opinion of the court be- ^ . i • • low, in admitting a note in evidence, and did not relate to the merits of the cause.
    
      The counsel cited Doug. 696. 2 Term Rep. 53. 125. 2 Saund. 38. note 27.
    
      Sedgwick, contra.
   Per Curiam.

In judgment of law, the record itself is removed into this court, from the court of common pleas, though, -in fact, a transcript only is sent up here. This court, therefore, has power to award a venire de novo, returnable at a circuit court, as was done in the case of Grant v. Astle, (Doug. 722.) and as was admitted to be the rule, by Lord Mansfield, in the case of Harwood v. Goodright. (Cowper, 89, 90.)

The case of Davis v. Pierce, (2 Term Rep. 125. is very much in point, as the writ of error there, was on a bill of exceptions from a court in Wales, as to the admission of evidence. The reasons given in that case are conclusive in favour of the prppriety and justice of granting a venire de novo in cases where the demand is cognisable in this court. But in the present case, as there is every reason to believe, that the plaintiff would not recover a sufficient sum to entitle him to costs, but would be obliged to pay costs, it can be of no benefit, but an injury to him, to grant the motion, and which, for that reason only, is denied.

Rule refused.  