The judgment must be affirmed. Without deciding whether the justice ought to have granted the adjournment, (notwithstanding his opinion as to the admissibility of the evidence,) had the application been in season, yet the application was too late, after the jury was empannelled. The trial of the cause must be deemed to have commenced.
It does not appear from the return, that the jury withdrew from the court; and if not, it was not necessary to swear a constable. In the case of Van Down v. Walker, (2 Caines, 373.) it appeared that the jury retired, and the court there say, it should appear that a constable was sworn to attend them.
Judgment affirmed.