1 Stew. 483 | Ala. | 1828
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
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.