
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1806.
    United States v. The Attaching Creditors of Bird, Savage, and Bird.
    A special verdict cannot be amended without the consent of both parties; but a venire facias de novo may be awarded, in order to complete the verdict.
    Motion to amend a special verdict. A feigned issue, had been made up, by consent of parties, to try the right which the United States claimed of being satisfied, in preference to all the other ere. ditors of the absent debtors, by attachment. A special verdict had been agreed on, and was found ; but certain material facts had been omitted, which were necessary to be found, in order to a full investigation, and satisfactory determination, of the question.
    
      Note. See 1 Bin. 238. Herretfc v. Bull. On reversal of judgment of lower court, Supreme Court awarded a venire facias it novo. SeeCowp.89. Doug. 708, 731. 31), and E. 125. 3 D. and E. 27. 3 Dali. 19,43, 415. 1 D. and E. 151. 3Str, 1055.
    The motion in this court was for leave to open the special ver-diet, and amend the same, by supplying the facts omitted. The District Attorney of the United States did not oppose the motion, but said he was not authorized to consent to it.
    The motion had been made before Bay J., in Charleston, who overruled the same.
    Desausstjre, in support of the motion,
    insisted, that, at any rate, the court would award a venire de novo. Cited 7 Bac. Abr. 5, new ed. 1 Stra. 513. Mayo v. Archer. Special verdicts have been amended by the insertion of a material fact. ' The better opinion, however, seems to be, that a special verdict cannot be so amended. But if a material fact be omitted, the special verdict cannot answer the end proposed, and, therefore, a venire facias must be awarded.
    Parker, District Attorney of the United States, submitted the point, without argument.
   9th May, 1806.

Giumke, J.,

declared the opinion of all the court. That the special verdict could not be amended without the consent of both parties ; but as it was conceded, that a particular fact was' not found, which ought to be found, in order to a complete understanding, and just decision of the question intended to be settled by the special verdict, it was necessary that there should be a venire de novo.

Venire de novo granted.  