We think the court below erred in submitting to the jury the question whether the bond was approved by the District Court or not, the question being *Page 346 raised upon a motion to the court and not upon any plea on which there was an issue to the jury. Besides, the jury found, not that the bond was not approved by the District Court, but only that it was not approved by the justice of the District Court, which may be a different thing. Pub. Laws R.I. cap. 597, § 10,1 of May 27, 1886.
The exceptions are sustained, and the case is remitted to the Court of Common Pleas.
Exceptions sustained.
1 As follows:
"SECT. 10. Whenever a justice of a district court shall be absent from the district or unable to serve, his duties shall be performed by the clerk of such court, if any there be, who shall constitute such court, and the fact of such absence shall be recorded in the records of such court. If the clerk of any district court shall be absent or unable to serve, his duties shall be performed by the justice thereof."