
    Sebring against Wheedon.
    In an action before a justice, a venire was • issued to summon a jury, which was delivered to the defendant. The defendant tunefbut rare was not returnea, nor aid. the jury appear; and the justice, although the defendant objected, proceededto ami gave °judgpiaintiffwit was held, that after been issued, the justice had no authority to try out ‘’a*jury, it that thePvenijS suapp™sPedPeiby the defendant; tice thoughtJUto comluerarefthe becn returned S
    IN error, on certiorari, from a justice’s court. Wheedon brought an action against Sebring, before the justice, for neglecting to serve an execution, in favour . y of Wheedon against one Martin Woodruff. On the re- . , . . , . turn clay ot the warrant, the parties appeared, and issue joined, the defendant requested a venire, which wag jssuec[ and delivered to the defendant. The cause 1 was adjourned, by consent of the parties, to the. fid of J J 1 July. On the - day to which the cause was adjourned, " , . . J . . . . . , r the defendant appeared, and waited about an hour alter the time. The plaintiff did not appear; the venire was not returned, nor did the jury appear. ' The defendant went away, and soon after the plaintiff came, ánd the justice proceededto try the cause, without the jury. Be-J e J J fore the trial was ended, the defendant appeared, and protested against the justice’s proceeding; but thejustice went on. with the cause, and gave judgment for the plaintiff, for 12. dollars and 58 cents.
   Per Curiam.

The judgment must be reversed. There *s no suggestion that the venire was improperly suppressetiby the defendant.. After the jhry process- had been issued, it was not legal for the justice to proceed to try the cause, without a jury. It was competent to.him to have issued a new venire, although the former one was not returned; and this was the course which he ought to have pursued, according to the.doctrine laid down by this court, in the case of Day v. Wilber. (2 Caines, 137.) Nothing was done, on the part of the defendant, that could be construed into-a waiver of a trial by jury, or an assent to a trial by the justice, within the case of Blanchard v. Richly. (2 Johns. Rep. 199.)

Judgment reversed.  