
    *Caleb Smith vs. Matthias Williamson. [*313
    CERTIORARI.
    A parly who seeks to reverse a judgment of a justice, on the ground of the admission of illegal Testimony, must shew that the evidence was unlawful. This court will presume the evidence admitted to bo legal, until the contrary is shewn.
    After the jury are impannellecl in ail action of forcible entry and detainer, they are under the control of the court, who may select a constable to take charge of the jury while they deliberate.
    A charge for constable’s fees for attending on a jury in an action of forcible entry and detainer, is not a legal charge.
    Though a judgment in an action of forcible entry and detainer] is erroneous in regard to the costs, it will not be wholly roversed oil that account. Rut the judgment may bo corrected in relation to the costs and allinnod as to the residue.
    
      M. Williamson obtained a judgment against 0. Smith in-an action of forcible entry and detainer. Smith brought a certiorari.
    
      Scott,
    
    on behalf of the plaintiff in certiorari, moved to reverse the judgment,
    First. Because the justice admitted illegal evidence, viz.. Permitted the plaintiff to read in evidence a lease from Cornelius Ulshart to Matthias Williamson; and there was-nothing apparent on the record to legalize this evidence.
    Second. That a constable was sworn to attend the jury instead of the sheriff.
    Third. That the judgment was erroneous in the amount' of the costs; that there was a charge allowed to the constable for attending the jury; and no constable was, by law,, required to attend the jury; it being the duty of the sheriff.
    
      I. H. Williamson, contra.
   By the Court.

The reasons relied upon for the reversal of this judgment, are — First. That unlawful evidence was admitted, viz. a lease. The argument assumes for its basis,, that the defendant must shew that the evidence was lawful. But we think otherwise. The presumption here is, that the evidence was lawful; and if the plaintiff seek to make it the foundation of a reversal, he must shew it unlawful.

Second. That the jury'were sent out without a proper officer, a constable having been sworn to attend them. We *314] do not think *this objection well taken. The jury after they are impannelled, are under the control of the-court; and the court may select an officer to take charge of them while they deliberate; although the sheriff convenes them.

Third. As to the costs. This reason is sustained. We think there is an error ; the 'charge of constable’s fees is not warranted, as there is no such item in the bill of costs; Rev. Laws, 352. But what is the consequence of this error ? Must the whole judgment be reversed ? We think .not. The act respecting the reversal of judgments on account of errors in costs, (Rev. Laws, 557) applies to this case. The language of it is general, and relates to justices, as well in the court for the trial of small causes as otherwise. The judgment, therefore, must be corrected in relation to the excess of costs ; and the residue of the judgment .affirmed.  