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Van Doren v. Walker

1 Cole. & Cai. Cas. 417 Court N.Y. Sup. Ct. English

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Majority

p. 417
William Van Doren v. Jacob Walker.

Headnote

IN error on certiorari.
Cadeijyior 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 f the whole history of the suit. When a proceeding so essential is omitted, we cannot consider it as done.