
    KELLY & LAMBERT vs. BARBIN.
    If the plaintiff has prayed for a jury, he cannot wave it and compel defendant to allow judgment to be entered.
    THIS was a suit upon a note of hand; the defendant plead the general issue, and prayed for a trial by jury : the word defence had not been written on the back of the answer.
    Ellery for the plaintiffs.
    We are entitled to judgment, according to one of the rules of thIs court, art. 27, ante 9.
    Hennen for the defendant.
    A jury has been prayed for; therefore the court cannot assess da.~ mages. To give to the rule the construction, which the plaintiffs' counsel proposes, would be to deprive the defendant of a trial by jury, which the ordinance and act of congress secure to him.
   By the Court,

Lewis, J.

alone. The rulecan only reach such suits, in which the court are to try both the law and the fact. A jury being prayed for, the defendant must have it.

Suit continued.  