The two exceptions relied upon appear above, and with respect to the first of these the court are of the opinion that the appearance of the defendant at the trial cured the defect in service.
It appears from the record in this case that the justice selected and named in the writ the three judicious and impartial men to be summoned by the constable to appear and try the cause, and the court are of the opinion that when the justice issues the writ, it is the duty of the constable to select and summon the jurors, and a record showing that some person other than the constable selected the jurors is fatally defective. We may also state that this construction of the statute is in conformity with a long established practice in this county.
For the reason stated it is ordered that the judgment below be and is reversed.