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.