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.