There are two fatal objections to the verdict and judgment in the court before the justice. 1. The jury, after hearing the evidence, were not put in charge of a constable, sworn to attend them, as required by the statute. (2 R. S. 244, § 109.) If a jury find a verdict without leaving *382their seats, it is an idle ceremony to swear a constable. (Fink v. Hull, 8 John. 437.) In this case “ the jury were left alone to make up their verdict, and, after agreeing, they returned to the court that they had agreed,” &c. Whether the jury retired from the court, or the court left them alone in the court room, is the same thing. The statute requires that they should be kept together in some convenient place, under the charge of a constable, &c. This must always be done, when they do not find a verdict on the spot, without being left alone for deliberation. The statute is imperative, and the county judge was right in reversing the judgment, for this cause. (11 John. 532. 2 Caines, 373.) 2. The statute requires that when the jury have agreed on their verdict, they shall deliver the same to the justice, publicly, who shall enter it in his docket. Previous to receiving it, the justice shall call the plaintiff. If he be absent, and no one appear for him, the verdict shall not be received. (2 R. S. 344, § 110.) The omission to call the plaintiff when he is actually present, and does not submit to a nonsuit, is not error. He is presumed, if present and not objecting, to assent to receive the verdict. (Oakley v. Van Horn, 21 Wend. 305.) But in this case, it is fairly to be inferred that he was not present. If the jury were left alone, as the justice returns, both he and plaintiff and all others must have left the room. And it does not appear that he was present when the jury returned to the court their verdict. Nor does it appear where they returned it—at the justice’s house, or at the tavern—or whether the justice came to the room, in which they were left alone to make up their verdict.
[Fulton General Term, September 6, 1852.Willard, Hand, Cady and C. L. Allen, Justices.]
Judgment of county cotirt affirmed.