Majority
p. 532Coughnet and others against Eastenbrook. NEW YORK, October, 1814.
Headnote
if a return to state thatThe beibreWaSjuryt and that the jury retired to consider of their verdict, without stating %ab'u a awas tend them, the be'fatai' for ft piied0t by timdment.IN ERROR, on certiorari, from a justice’s court. Eastenhroolc sued Coughnet, and others, before the justice, and declared uPon a Dote or agreement to pay him a certain sum per month, for his services as a soldier, &c. One of the defendants, 7 7 Coughnet, only was taken. The return was very short, and ° ’ / . , , . , . J ’ , stated that the cause was tried by jury ; that it was submitted to them, and, after having retired, the jury returned with a verdict in favour of the plaintiff, for fourteen dollars and costs> uPon which a judgment was entered. Nothing was men-^one(^ an7 constable attending the jury, nor any thing from which it could be inferred, that such was the fact. Several other objections were also made.
The return is very imperfect, and injustice may, perhaps, be done for want of a more perfect statement of the proceedings below. The case of Van Doren v. Wilcox, ( 2 Caines’ Rep. 373 .) is in point, to show, that if it appear from the return 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. This objection cannot be surmounted ; it grows out of the positive direction of the statute, that a constable shall be sworn to attend the jury. This is not an omission or misrecital of an oath merely, so as to bring th© case within the proviso to the 17th section of the act. (1 N. R. L. 397.)
Judgment reversed.