
    Dayharsh v. Enos.
    
      Jury trial. — Waiver.
    It is too late, after verdict, to object that the case was not triable by a jury; by going to trial, on the merits, the objection is waived.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment upon a verdict in favor of the plaintiff, in the county court of Madison county, had been affirmed.
    This was an action for an assault and battery, commenced in the county court, in September 1847. The declaration was in the usual form; to which the defendant pleaded the general issue, and son assault demesne; the replication traversed the latter plea.
    After issue joined, the code of 1848 was passed, to take effect on the 1st July of that year, whereby the act of 1847, under which this suit was brought, was repealed, so far as it defined the jurisdiction of the county courts, and actions of assault and battery were excluded from their jurisdiction, with a ^saving clause in favor of actions pending. It also provided for a trial by the court of all issues of fact thereafter to he joined, unless, on motion of either party, a jury trial should be ordered.
    At the September term 1848, on motion of the plaintiff’s attorney, the county court made an order directing the sheriff to summon eighteen citizens, competent to serve as jurors, to appear in the said court, on the following day. The sheriff duly returned a panel of jurors, from which twelve were drawn for the trial of the cause, before whom it was tried, without objection on the part of the defendant, who appeared by counsel, either as to the jury, or the mode in which it was summoned or impannelled.
    There was a verdict in favor of the plaintiff, and the judgment entered thereon having been affirmed by the supreme court, the defendant took this appeal.
    
      Barlow, for the appellant.
    
      Stower, for the respondent.
   *TAIGKE> J-

This action was commenced in the county court of the county of Madison, and an issue of fact was joined therein, before the adoption of the code. The legislature, in the adoption of tho code, through inadvertence, omitted to give the county court authority to try causes in which issues of fact had been previously joined, by jury. (Code of 1848, §§ 32, 35, 36, 37, 38.) But by the provisions of the code (§ 32), the court retained jurisdiction of such causes, and of the parties.

This cause was tried in the county-court, by jury, in September 1848; the defendant appeared on the trial, and interposed a defence to the suit on the merits, and omitted to make any objection, on the trial, to the trial of the cause by the jury, or by the court and jury. I think, the defendant, having failed to take his objection, at the proper time, must be regarded as waiving the irregularity of the trial by the court and jury, and acquiescing in, or consenting to, such trial. This is not a jurisdictional question; the court *had jurisdiction both of the cause and of the parties, but by a mistake in the adoption of the code, it had no power to try the cause by a jury. We must regard the trial as a trial by the consent of the parties; a party may silently acquiesce in, or expressly consent to an irregular impannelling of the jury, or to a trial by a jury of less than the legal number, or by incompetent jurors. (10 Johns. 107; 2 Id. 385; 9 Id. 352, 354; 11 Id. 134; 17 Id. 133; 9 Bing. 13; 6 Taunt. 460; 4 B. & Ald. 430; 2 T. R. 385.) Consent, either express or by implication, waives all objection to irregularities which occur in the progress of a cause.

I am of opinion, that the judgment of the supreme court should be affirmed.

McCoun, J.

By § 14 of Art. vi. of the constitution, it is declared, that a county judge shall be elected in each county of the state, except in the city and county of New York, who shall hold a county court, and this county court “shall have such jurisdiction, in cases arising in justice courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases.” The judiciary act of 12th May 1847, §§ 29, 30,31, enumerates the special cases of which county courts shall have jurisdiction, and among them is the action for assault and battery, when the damages claimed do not exceed $500. In all such actions and proceedings as they have jurisdiction of, the power to hear, try and determine them, according to law, is declared.

County courts are, therefore, courts of special and limited powers, dependent upon the legislature for their jurisdiction, and subject to any alteration which the legislature may think proper to make with respect to it, at any time. When the action for assault and battery was commenced, in September 1847, by Dayharsh against Enos, in the Madison county court, that court had jurisdiction *and power to try it; but before it could be tried, the code of 1848 took effect as a law. The 32d section of that code repealed the judiciary act, so far as it had conferred or defined the jurisdiction of the county courts, and declared their jurisdiction de novo, omitting the action of assault and battery, and a number of other actions, altogether; but expressly providing that the repeal should not affect any proceedings then pending in those courts. “Any proceeding,” I suppose, must be understood as embracing any “action” then pending, so that the action in question still had its standing in court.

But how was it to be tried ? The 34th section of the code appointed general terms of each county court, for the final hearing of actions or proceedings pending therein; but this code provided no way for the trial of issues of fact previously joined; its provisions related to issues of fact thereafter joined. (§ 35.) Such issues were to be tried by the court, unless, on motion of either party, it should order a jury trial. When a jury should be ordered, §§ 36 and 37 prescribe the manner of obtaining and drawing the jury. By introducing the word “hereafter” into § 35, all those provisions which followed about a jury-trial in the county courts were made to relate, not to issues which had been already joined, and were then pending in those courts, under the law of 1847, but confined them to issues of fact which should be subsequently joined. This was, probably, an oversight or an inadvertence.

Still, it may be asked, was there not a power residing in the county court of Madison, to try that cause by a jury ? I think, there was. The court was a constitutional court; its power and jurisdiction had been declared and defined by the judiciary act; in virtue of that law, the court had acquired jurisdiction over the person of the defendant, as well as over the subject-matter of the action. The jurisdiction of the court, in respect to fiiture cases and proceedings, was materially altered by the code, but the court was left in possession of this pending action, unaffected by the change. The court was required by the code itself to bold a ^general term, on days and at places specifiedj 'for the final bearing of actions or proceedings pending therein.” The constitutional right of trial by jury belonged to the case. In the absence of any specific directions for summoning or obtaining the attendance of a jury, the court still had the power to order a jury to be summoned and drawn for the trial of the cause; it was a necessary power, inherent in the court, and which it might exercise, unless a trial of it by a jury had been waived by consent of parties, or in some other manner prescribed by law. (Constitution, Art i., § 3.) When, therefore, this cause was brought before the county court to be tried, as it was, in September 1848, that being one of its stated terms, it was clearly competent for, the county judge to order a jury to be summoned to try it; the parties not having in any manner waived a trial by jury. It appears from the record, that the trial took place before a jury of twelve men, who were drawn from a panel of eighteen residents of the county, summoned by the sheriff for the purpose, under an order made by the county judge in court, and by that jury a verdict was rendered, in the usual manner of such trials, on which judgment was given.

Now, the question on this appeal is not one of regularity or irregularity in the manner of summoning, returning or drawing the jury, or in the mode of conducting the trial. If there was anything objectionable, in either of those respects, the dissatisfied party should have sought his remedy in another form. The only question upon the record brought up on this appeal, is a question of jurisdiction and power of the county court to try the cause at all, and, more especially, to try it by a jury; and believing as I do, that notwithstanding the change in the law, while the action was pending, the county judge retained the jurisdiction, and had the power to order a jury for the trial of it, I think, the judgment appealed from must be affirmed.

Judgment affirmed. 
      
       A majority of the court concurred in the opinion of Mr. Justice Paige. No question ivas raised as to the authority of the legislature to confer jurisdiction on the county court, in actions of assault and battery. But in Kundolf v. Thalheimer, 12 N. Y. 593, the court decided that the legislature had no such power, under the constitution.
     