
    Eastman against Tuttle.
    In assumpsit B, for depaskeepm»on hay the cattle quest, on land m A’si possess-topped to title7of*thehe land was not at the time the sendees were performed. Where a juoutUieknowledge of the "ties^abs'enb1" while a witness was under examination, but, as soon as this was discoverination was™" anTonh"1 ’ turn, soon after, the parties proceeded without objection, and re-examined the witness, so that the juror heard all the evidence ; held, that the judgment ought not, for this reason* to be reversed.
    Certiorari to a Justice’s Court. In assumpsit, by Tuttíé against Eastman, in the Court below, for depasturing and keeping on hay thé defendant’s cattle, on land in possession the plaintiff, at the request of the defendant. Thé depasturing, keeping and request were proved as laid ; and the defendant then offered to prove that the title of the land, on w hich the plaintiff lived and performed the services, was, at the time, *n *he defendant. This was oveiTuled as improper ; and a verdict and judgment rendered for the plaintiff. While a witness was under examination, a juror was absent without fhe consent of the parties, but he soon returned ; the Jus- . . tice asked the parties whether they would proceed, to which no objection was made, and the witness was re-examined.' The examination of the witness was suspended as soon as the absence of the juror was discovered,
    //, Welles, for the plaintiff in error, 7 *
    
    
      J. Maynard, contra,
   Curia.

The Justice decided correctly. It was immatc* ’n whom the title was. The plaintiff had the possess-i°n ; and the defendant did not set up any claim by way of set off for the plaintiff’s use and occupation of the land, hut merely offered to shew the naked fact of title. The absence of the juror is not sufficient cause for reversing the judgment. The examination of the witness was suspended, as soon as the absence of the juror was discovered; and when he re-appeared the examination commenced de novo. He heard all the testimony. It was air inadvertence bn the part of the Court as well as the parties, but no injury resulted from it.

Judgment affirmed, 
      
       Vid. Smith v. Thompson, ante, 221, and note (a)
     