Meech v. Brown

On tbe return day of tbe summons, tbe justice was absent, and the clerk adjourned the action. This be bad po'wer to do. Session Laws, 1840, p. 123. He bad no power to enter tbe pleadings, and tbe issue could not then be joined without tbe consent of tbe parties, and tbe issue was not joined. Tbe defendant demanded a jury on sucb return day, and tendered tbe fees for tbe venire, but tbe clerk informed him “ that that was not tbe time to demand a jury trial, and that be must wait ^ issue was joined on the adjourned day.” On tbe adjourned day, tbe defendant, after issue joined, demanded a jury; bis demand was not complied with, and bis application was denied on tbe ground that it was too late. The clerk acted properly in' deferring tbe demand for'the jury until after issue joined. Sucb is the provision of tbe statute on that subject. Laws of tbe state relative to tbe city, p. 46, § 95. I think, however, that tbe justice'erred in deciding that it was too late to demand tbe jury. His refusal was, doubtless, based upon tbe act of January 4, 1820, § 111, which provides “that it shall not be lawful for either of tbe parties, after tbe day on which an order has been made for an adjournment, ” to demand of the court that sack action be tried by a jury. At that time, and until tbe act of 1840, supra, tbe clerk bad no power to adjourn any action, and if tbe justice was absent the action abated. And it was not necessary, therefore, by any proviso in tbe act of 1820. to protect tbe defendant from the effect of an order for an adjournmentyr/w to issue joined, if, indeed, any such proviso could be deemed necessary, had that act itself conferred tbe power to adjourn, on tbe clerk, given by tbe act of 1840. I think no proviso would even then have been necessary, and, that the act of 1820 in no way conflicts with or intervenes the right of tbe defendant to a jury where tbe adjournment is made bejxe issue is joined, in consequence of the absence of the justice. The act of 1820 contení-

I do not consider it an answer to this objection, that the dé-fendant took no exception to the decision of the justice, and proceeded with the trial. The object of the court, in compelling a party to make his objection in time, is to enable his adversary to supply the defect, or correct the error, which forms the subject of the objection.' The exception presents that objection to the court on a review, but the plaintiff withheld his consent for h&p jury, and thus placed himself beyond the equity of the rure referred to. Independently, however, of that view of the case^ I think, under the bill of rights, and the provisions of the constitution, the right of trial by j ary is so sacredly secured, that when it is denied, and that fact is brought to the notice of a court of review, it imposes a duty on that court which is paramount to all technical rules of practice, to see that the denial was justified by the laws of the land, and, if not, to remedy the wrong by the exercise of its authority.

Judgment reversed.