Day v. Commonwealth , 2 Va. 562 ( 1845 )

Smith, J.

delivered the opinion of the Court.

It appears from the record in this case, that the prisoner was permitted to file a plea in abatement, to which the attorney for the Commonwealth replied generally; and that the issue thus joined, was decided by the Court against the prisoner. This issue, so joined, not being an issue in law, but of fact, ought to have been submitted to a jury for trial; and it is the unanimous opinion of this Court, that for this error the judgment must be reversed, and the case remanded for a new trial. It has been deemed unnecessary to consider or decide any of the other points raised by the several bills of exceptions, as they cannot arise on the new trial.

Judgment reversed, and new trial awarded.