
    Henry Moebs vs. Siegfried Wolffsohn.
    Suffolk.
    November 18. —26, 1886.
    Holmes & Gardner, JJ., absent.
    If a constable, who, under the Pub. Sts. c. 170, § 2, is exempt from serving as a juror, is duly drawn and serves as a juror in a case, a party thereto is not entitled to a new trial as of right.
    Writ oe review to reverse a judgment obtained by the defendant in review against the plaintiff in review, wherein the principal question tried was the alleged misconduct of the defendant in review, while acting as a constable of the city of Boston, in the collection of a claim of the plaintiff in review from one Hellbach, in violation of the Pub. Sts. e. 159, § 45. The case was tried in the Superior Court, before Thompson, J., and a verdict was rendered for the plaintiff in review.
    After the verdict, the defendant in review moved that the verdict be set aside, and for a new trial, on the ground that one of the jurors who heard said case was disqualified from acting as a juror, he being at the time a constable of the .city of Chelsea:,
    At the hearing upon said motion, it was shown by evidence, which was not controverted by the plaintiff in review, that Hugh H. McCann, the juror referred to in said motion, was, at the time of said trial, a constable of the city of Chelsea; that that fact was not known to either the defendant in review or his counsel, until after the verdict, and that, had either of them known the fact, they would have challenged said McCann for cause, or peremptorily.
    The judge ruled that these facts furnished no legal and sufficient ground for granting said motion ; and overruled the same. The defendant in review alleged exceptions.
    
      1. J. Gutter, for the defendant in review,
    submitted the case without argument.
    
      A. F. Means, for the plaintiff in review.
   By the Court.

A constable is exempt from serving as a juror. Pub. Sts. o. 170, § 2. But if a constable is duly drawn and serves as a juror, this does not entitle a party to a new trial as of right. Upon this point, the case of Munroe v. Brigham, 19 Pick. 368, is decisive.

Exceptions overruled.  