delivered the opinion of the court.

It seems to the court, that the judgment is erroneous. It appears, that on a writ of enquiry, only nine jurors were sworn. As there is no- waiver an the record, express or implied, of objection to the number, the judgment must be reversed. It would her prudent on the return of the case for the defendant in-, error to amend bis declaration, by averring bis readiness on the day and at the place designated to do what-might be necessary on his part, and also to aver the nondelivery of any wagon, without regard to the price. Judgment reversed, and cause remanded for a new trial.-