#### Albert M. Fulton, Appellant, *v.*William P. Yuill, Respondent.

(County Court, Sullivan County,

July, 1898.)

Justice’s Court — Failure to swear the jury.

A failure to swear the jury upon the trial of an action in Justice’s-Court is a fatal error and cannot be disregarded, under section 721 of the! Code of Civil Procedure, as that section applies only to courts of record.

This was an- action brought in a Justice’s Court of the, town of Thompson, in said county of Sullivan, in December, 1897.

After issue was joined a jury trial was demanded, and a jury summoned. The jurors were drawn, and the trial proceeded, and a verdict rendered in favor of the defendant, upon which judgment was entered.

It appears by the justice’s return that the men drawn and who rendered the verdict were not sworn — none of them. The plaintiff appeals from the judgment entered on such verdict to this court.

John D. Lyons, for appellant.

Chas. H. Stage, for respondent.

Jelliff, J.

A Justice’s Court is a tribunal created by statute, by which its jurisdiction, powers and duties are limited and prescribed.

The policy of the law is, that the judiciary shall be rendered pure, as far as may be; that those who constitute a court, and who exercise the power of pronouncing judgment as such, shall act under oath; that a set of men known as a jury to act in that capacity, in order to be properly vested with that power, must be sworn. The purpose of an oath to a jury is to bind them in their action, as a guard against any prejudice they or any of them may entertain against either of'the parties; to prevent their action being controlled by feelings of friendship for a particular party, a fair and conscientious consideration, "and honest determination of the matter given to their charge, which is to pass into judgment by which parties are to be bound.

The statute makes it the duty of the justice to administer an oath or affirmation to the jurors. Parties are not bound to see to it *286that the court discharges its duty in organizing its tribunal. Nothing should be taken by implication, to confer jurisdiction or to abridge the general rule that all judicial officers and judicial action shall be under oath. Who can say that-the jury did not reason with their own conscience and their .own private feelings, and say — we are at liberty tó do as we see fit, regardless of the law or the fact, so long are we are not under oath.

It appears, upon the face of the record, that the jury were not sworn. The statute provides that “ The justice must administer an oath or affirmation to each juror ” — and prescribe the substance thereof. Code Civ. Proc., § 2998. The error complained of is an error and omission on the part of the court itself, not of the officers.

There are no prescribed rules of practice for Justices’ Courts, other than those found in and authorized by the statute creating that tribunal, and prescribing its powers and duties. Its court must be organized according to the statute from which it derives its existence, or its action is without legal authority, and its judgment' without force or effect. There seems to be ho New York cases bearing particularly upon the particular point of swearing the jury in Justices’ Courts. We must, therefore, reason from analogy. In the case of Coughnet v. Eastenbrook, 11 Johns. 532, the judgment was reversed, on the ground that it does not appear by the return that the constable was sworn to attend the jury; the court says: “ This is a fatal omission, not to be supplied by intendment. This objection cannot be surmounted; it grows out of the positive direction of the statute:” Again, in referring to this case in 7 Wend. 428, the court says: “ These inferior justices’ courts derive all their powers from the statute by which they' are created, and they must conform, in all respects, to its requirements; no intendments are made in their favor, and-the statute positively required that a constable should be sworn to attend the jury; the omission was therefore fatal.” The objection was raised for the first time on appeal.

As to Justices’ Courts the statute must prevail — when no statute applicable thereto makes an innovation upon it. ■ Section 721 of the Code of Civil Procedure has no application to' Justices’ Courts. The cases of Hardenburgh v. Crary, 15 How. Pr. 307, and Jenkins v. City, of Hudson, 8 Civ. Pro. 70, citied by the re-. spondent, are cases arising in the Supreme Court, and the errors assigned are acts, omissions or neglect, etc., on the part of some *287court officer. They proceed upon the authority found in section 721 of the Code of Civil Procedure, and the statute from which it was borrowed, which applies strictly to courts of record. Section 3347, subdivision 6 of the Code of Civil Procedure, expressly limits section 721 to courts of record, and has no application to courts of the justices of the peace. The rule cannot be extended beyond its authorized operation and the statute must prevail.

The conclusion arrived at being decisive of the case, it is unnecessary to discuss the other questions raised.

The judgment of the court below must, therefore, be reversed.

Judgment reversed. .