
    TEN EYCK, APPELLANT v. FARLEE, ADMR. APPELLEE.
    
      T. A. Hartwell
    
    moved for a mandamus to the Hunterdon Common Pleas, to reinstate an appeal from a judgment of a Justice of the peace upon a verdict. The appeal was entered at May term 1837. At August term, a jury trial was demanded by the appellant. At a special term in September, the appeal was dismissed for want of prosecution.
    
      Mr. Hartwell
    
    insisted that if a suit is properly before the appellate Court, on the demand of a jury trial, no appeal can be ..dismissed; and that the appellee must proceed and substantiate his claim. That the verdict is set aside by operation of the statute, and consequently there is no verdict or judgment to be affirmed or reversed — no judgment can be entered or execution issued. That a motion at a special term, to dismiss an appeal from a verdict, is illegal if a jury trial on the appeal be demanded. Har. Comp. 129, lb. 5. The act of 1820, Rev. L. 797— is supplied by that in Harr. Comp. 5.
    
      Hamilton, contra.
    Contended that the practice of the Courts in Hunterdon has been conformable to their decision in this case.
   Horrbeower, C. J.

The appeal if regular, supersedes the verdict; and the plaintiff must proceed anjJ prove his right of action.

As to the power of the Court to dismiss an appeal, at a special term, when a jury trial is demanded, it has been decided otherwise.

Ford J. concurs.

Ryersoe J.

At a special term, no jury trial can be had, notwithstanding any rule to the contrary.

Rule to shew cause, granted.

if ote. — The rule was argued at February term 1838, and then made absolute. Yide the report, post.  