Dixon v. Richards , 3 Miss. 771 ( 1838 )

Mr. Justice Pkav

delivered the opinion of the court.

This case comes up on writ of error from the circuit court of the county of Jefferson.

The errors assigned are:

1. That the action is assumpsit upon an instrument under seal when it ought to have been debt or covenant.

2. The case was tried in the court below* without any issue being submitted to the jury on the pleadings.

3. The case was tried by only eleven jurors.

The first error assigned is cured by the statute of jeofails, The error being apparent on the face of the declaration, it might have been reached by a demurrer.

As to the second error, the action was in assumpsit, and the plea was non assumpsit: this forms a proper issue for the jury.

The third error assigned is fatal. A jury must consist of twelve men: no other number is known to the law: here there was but eleven.

The judgment must be reversed, cause remanded and a venire de novo awarded.