Foote v. Lawrence , 1 Stew. 483 ( 1828 )

The CHIEF JUSTICE

delivered the opinion of- the Court.

The only error relied on in this case is, that the record does not afford evidence that there were more than eleven jurors to try the issue joined between the parties.

There can be no question that every issue of fact must be tried by a jury of twelve men; it is not however necessary that their names should be recorded. The term jury is well understood to be twelve men ; and when the record shews that a jury of good and lawful men came to try the issue joined, we understand it as well as if it gave the names of the jurors; at least in civil cases. The record before us shews by its terms,,that the parties came by their attorneys, and then came a jury of good and lawful men, and then assumes to give their names, but records the names of eleven only. The recording the names, as we have before stated, was not essential; it was au act of supererogation in the clerk; his record would have been g^od without it. His assuming to do what was not necessary, does not impose the same obligation and produce the same consequences as if a party to the suit had undertaken to state it. When a party undertakes to state or aver matters not material, yet he is in most cases required to state them correctly, lest he should mislead the other party ■ The parties m this case were present in Court, and no doubt fully competent to take care of their rights, and there can be no rational doubt but. in truth and fact'the jury was composed of twelve men. After a verdict attended with such circumstances, we believe that we are bound to infer, that the jury was a full, good and lawful jury; and that the cleik when he so unnecessarily undertook to give their names, committed a mistake, and omitted one. We must either infer this, or that the parties consented, as is sometimes the case, to an informal jury.

Note. — In a return to a certiorari issued by this Court to obtain a more full transcript of the record from the Court below, the clerk certified that the next cause in the County Court appeared by the records to have been túed by the same jury, and in their enumeration there was one juror more; and that in the several verdicts rendered on the same day, lour or five in number, there appeared to be twelve persons entered in all the other verdicts recorded, *so that in his opinion .f must have been a clerical error in recording- eleven names only instead of twi Ive in this case. The Court however appear not to have considered this as a part of tiie record in the opinion given;

The Court being equally divided, the judgement of the Court below must be affirmed. This however may be considered as the opinion that will govern in future cases, as my brother Taylor who declined sitting in this case, is understood to concur.

Judgement affirmed.