The reasons relied upon for the reversal of this judgment, are — First. That unlawful evidence was admitted, viz. a lease. The argument assumes for its basis,, that the defendant must shew that the evidence was lawful. But we think otherwise. The presumption here is, that the evidence was lawful; and if the plaintiff seek to make it the foundation of a reversal, he must shew it unlawful.

Second. That the jury'were sent out without a proper officer, a constable having been sworn to attend them. We *314] do not think *this objection well taken. The jury after they are impannelled, are under the control of the-court; and the court may select an officer to take charge of them while they deliberate; although the sheriff convenes them.

Third. As to the costs. This reason is sustained. We think there is an error ; the 'charge of constable’s fees is not warranted, as there is no such item in the bill of costs; Rev. Laws, 352. But what is the consequence of this error ? Must the whole judgment be reversed ? We think *373.not. The act respecting the reversal of judgments on account of errors in costs, (Rev. Laws, 557) applies to this case. The language of it is general, and relates to justices, as well in the court for the trial of small causes as otherwise. The judgment, therefore, must be corrected in relation to the excess of costs ; and the residue of the judgment .affirmed.