The consent of the parties that the jury might retire, without any constable to attend them, was a waiver of the irregularity complained of in their conduct. The parties, by their agreement, took from the magistrate the power, which he would otherwise have had, of enforcing a private deliberation of the jury, and of preventing their obtaining refreshment.
It is not certain, from the justice’s return, whether the ver. diet and judgment were given on Sunday morning or not. The fact ought to be made explicitly and clearly to appear, to justify a reversal of the judgment on that ground. The testimony given in the cause is not returned, so as to enable the court to decide as to the merits of the case; and the presumption ought to be in favour of the judgment. \
Judgment affirmed.