
    TEN EYCK v. FARLEE, ADMR. &c.
    
    On rule to shew cause against a mandamus to Hunterdon Common Pleas to re-instate an appeal.
    The rule to shew cause in this case, was granted at November term — ante 269.
    
      Mr. Hartwell,
    
    now moved to make the rule absolute.
    
      Hamilton, contra.
    The question is, have the Court of Common Pleas authority to make a rule in cases of appeal, that a jury trial shall be considered as waived, unless at the time of appointing a special term for hearing appeals, a jury trial is demanded ? He cited the acts in Har. Comp. 5, and 302 — and 6 Halst. 169. See also Har. Comp. 129.
   Hornblowjer, C. J.

If the rule of the Hunterdon Pleas, were a convenient one, I would not willingly disturb it. Under the first act authorising special terms of Courts in certain counties, Har. Comp. 129, such a rule might be adopted; but by the last act on this subject, Har. Comp. 302, which extends to all the counties of the state, the legislature give a specific rule, requiring an express waiver of trial by jury. No rule of Court then is here wanted. Rules are made for cases in which the statute is silent. The Common Pleas in the present case have reversed the directions of the statute,'and require a demand of a jury; and put the party to the expense of continued entries of such demand. Their rule is oppressive and contrary to the statute.

Ford, J.

A party has a vested right to his trial by jury, unless he waive it. Courts may prescribe the form of, but cannot dispense with the waiver.

The rule of the Common Pleas is contrary to the statute.

Ryerson, J.

I concur in granting a mandamus. But I am inclined to think the Common Pleas may make a rule that the silence of the party, shall be construed as a waiver; but not to require a repetition of a demand of a jury. The last act extends the power of the Court-to try jury causes, and, as I think, to make a rule that not demanding a jury, is a equivalent to a waiver. The language of the act does not require an express waiver; but to compel a repetition of the demand of a jury, would bo oppressive.

In this case a demand of a jury had been twice entered on the minutes of the Court.

Peremptory Mandamus ordered.  