Majority
p. 373Van Doren against Walker.
Headnote
If it appear from a return to a certiorari that the jury retired, and nothing is said about a constable’s being sworn to attend them, it is a fatal omission, not to be supplied by intendment.In Error on certiorari.
Cady, for the plaintiff.
The return does not state that any constable was sworn to attend the jury, though it is evident they retired.
Van Vechten, contra.
As no improper practice is alleged, *and it does not appear a constable was not sworn, the court will intend it was done.
As nothing is said about a constable’s being sworn, or having charge of the jury, the court cannot supply it by intendment. There are no words in the return to intend by. We might as well intend an issue joined, or a venire when nothing is stated. The justice must state, as the writ requires him, all -his proceedings, the whole history of the suit. When a proceeding so essential is omitted, we cannot consider it as done.
Judgment reversed.