With respect to the effect of the former trial, there appears to have been no decision made by the justice; and it might be fairly inferred, from this circumstance, that the defence on this ground was not persisted in: but there could be no objection to the plaintiff’s waiving any claim for the negligence ; this was a distinct cause of action, and founded in torh The other objection, however, is fatal. The statute requires the venire to be directed to a constable of the city or town where the cause is to be tried, commanding him to sum, mon, &c. The direction of a venire is different from that of a summons or execution : these are directed to any constable of the county. Perhaps, the mere direction of the venire might have been considered matter of form, if it had been served by a constable of the town where the cause was tried \ this the act seems to require ; probably because constables of the town are more likely to be acquainted with persons who are fit and proper jurors. But, whatever may have been the reason for suph a *228provision,-it is too plain and explicit to admit of any other con- ' struction. The judgment must, therefore, be reversed/
Judgment reversed.