ROBERTS vs. SWEARENGEN and FORBES, 1 Hard. 121

Opinion of the Court. — In this case the first error assigned* is* that the jury were swdm to try the issue joined whereas no issue had been joined,* The other errors being clearly insufficient, it is not material to do more than examine whether the swearing of the jury was erroneous. To prove which, the counsel for the plaintiff has refered the court to the case of Nathaniel and John Williams vs. Elisha Cheek, in the printed decisions of this court, page 76.

In the ease referred to there were issues made up between the; parties, but the jury were sworn to inquire of damages, instead of being sworn to try the issues. In that case there was error ; because, until the issues were found, the jury could not find any damages, as the plaintiff’s right to demand damages, depended upon his establishing the issue, from which alone they could result.- In other words, swearing a jury to inquire of damages, pre-supposes the plaintiff’s right to recover them.

Swearing, then* to try the issue, renders it necessary for them first to ascertain the plaintiff’s right to any thing, and in the next place, to find the amount thereof.

But this case, standing upon a judgment by default and writ of inquiry, was an acknowledgment of the plaintiffs’ right to recover something ; so that it was not necessary that a jury should have been required to do more than find the amount to which the plaintiffs were entitled ; and that having been sworn to do more than -ought to have been required of them, cannot vitiate that which they have properly done, and must as necessarily have done under the oath to try the issue, as the oath to inquire of damages.-Judgment affirmed. ín the cafe of Handley vs.

Travis, Spring. 1802, pr. dec* 161, this «rros was held fatal. Higgins, &c. vs. Lilliard's ex'rs Spring 1806, S. P. In the cafe of Wofford vs. Ifbel, decided fall term i8o3, there had been ifTues made up on the pjeas of not guilty, and juftification — the record Gated that the jury were ff fworn to try the iffiie joined.” This was held an informality that did not affe& the judgment.