
    Stephen Holt vs. Wadlington P. Mills.
    Upon a trial for an unlawful detainer, under the statute on that subject, it is a fatal defect to the verdict, that the jury were not sworn to find “ whether the plaintiff has the right of possessioneven though the verdict be full and in the words of the statute.
    Upon trial for unlawful detainer, it must appear affirmatively in the record, that the jury were sworn ; the mere recital that the jury find upon their oaths, is not sufficient.
    On appeal from the Hinds circuit court. "
    This was an action for an unlawful detainer. The application and warrant are in the name of Wadlington P. Mills and Charlotte F. A. Mills, his wife, late Charlotte F. A. Thompson, against Stephen Holt; and charges, that he, “unlawfully, and against their, or either of their consent, holds them out of possession of a certain tenement of land, with its appurtenances, containing, by estimation, one hundred and sixty acres,” &c. The jury were sworn “the truth to speak, whether the said defendant did, at the time of the exhibition of the complaint, filed in this cause, hold possession of the tenement therein mentioned, against the consent of the plaintiffs, and whether the said defendant did continue to hold possession of the said tenements mentioned, at the time of the exhibition of this complaint, and a true verdict,” &c.
    The court having rendered judgment for the plaintiffs, a new trial .was moved for, on the ground that the verdict was against law and evidence. The court overruled this motion, and Holt, the defendant, filed his bill of exceptions. It is not deemed requisite to set out the evidence, as the court decided irrespective of it.
    
      Mayes, for appellant.
    The jury were sworn “ the truth to speak, whether the said defendant did, at the time of the exhibition of the complaint filed in this cause, hold possession of the tenement therein men-' tioned, against the consent of the plaintiffs, and whether the said defendant did continue to hold possession of the said tenements mentioned, at the time of the exhibition of this complaint, and a true verdict render,” &c.
    The statute requires that the jury be sworn, as follows: “ You shall well and truly try whether the defendant, O. D., against the consent of the plaintiff, holds possession of the tenement mentioned in the complaint filed in this causé; whether the said defendant hath so held possession thereof for three years next before the exhibition of the said complaint; and whether the plaintiff had the right of possession in the tenement aforesaid. Rev. C. 239. There are, then, four distinct facts upon which the jury are to find, and the swearing is, by the statute, to specify these. 1. Did the defendant hold possession of the tenement; 2. Was such holding against the consent, of the plaintiff; 3. Had the defendant so held possession for three years before complaint exhibited; 4. Had the plaintiff the right of possession.
    It cannot be contended that the swearing substantially embraces these facts. The legislature having prescribed the oath, and fixed its terms, that swearing is essential; no other oath can be substituted. Even if there might be a substitute, the oath here substituted is wholly insufficient, not embracing the essential facts.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a proceeding for an unlawful detainer, under the statute upon that subject. An objection is taken to the oath which was administered to the jury upon the trial, which we regard as fatal, and which renders it unnecessary to notice any other point.

The statute requires, in such case, that the jury shall be sworn to try, first, whether the defendant holds possession against the consent of the plaintiff; secondly, whether he has so held possession for three years, next before the exhibition of the complaint; and lastly, whether the plaintiff has the right of possession.

In this instance, the first two parts of the oath were administered to the jury, but the last, that is, “ whether the plaintiff has the right of possession,” was wholly omitted. The verdict, it is true, embraces each of the three points, but so much of it as relates to the last, was beyond the limits of the oath administered, and it is not in response to any part of the issue. The statute directs, that the trial shall be had without pleadings in writing,” but has prescribed the precise terms of the oath, probably as a substitute for a formal issue in writing.

It has been decided, by this court, that it must appear affirmatively in the record, that the jury was sworn, and the mere recital, that the jury find upon their oaths, is not sufficient. Graham v. Fore, 1 How. 498. It follows, that in this proceeding if the oath is set out, and is not such as the law requires, the verdict cannot stand. We do not undertake to say what would be the effect of a general statement, that the jury was sworn according to law.

The judgment must be reversed, and a new trial awarded.  