
    WADDELL v. PHYSICK. 
    
    
      Certiorari.
    
    In the court of small causes, if a jury cannot agree upon their verdict, and are dismissed by the justice, his jurisdiction is at an end in that cause.
    
      S. R. Hamilton, for plaintiff.
    
      
      Decided orally at February Term, 1839.
    
   Hornblower, C. J.

This cause came on to be tried in the court below, before a jury, at Davidson’s tavern in Bloomsbury, on the 8th of September, 1837. The jury being unable to agree upon a verdict, the justice dismissed them about midnight of that day. The next day at three p. m. at his own office at Millhill, he proceeded to try the cause, in the absence of the defendant, and gave judgment against him. It is true, the justice in answer to a rule of this court, calling on him to certify in relation to the matter, says that he sent notice to the defendant to attend and be present at the trial; but when, or by whom, or in what manner such notice was sent, or whether it reached the defendant, in time for him to attend, or ever reached him at all, does not appear. It is unimportant however, whether the defendant had notice or not; the proceeding was erroneous, and the judgment must be reversed upon the authority of Gulick v. Van Tilburgh, 1 Harr. Rep. 417, in which it was decided by this court, that if a jury cannot agree upon their verdict, and are dismissed by the justice, his jurisdiction is at an end in that cause: he cannot issue a venire de novo, nor afterwards try it himself, without the consent of the parties. He should record the fact, and dismiss the suit; leaving the plaintiff at liberty to commence a new action. Let the judgment be reversed.

Ford, White, and Dayton, Justices concurred.

Neviüs, Justice, absent.

Judgment reversed.  