
    Olney against Bacon.
    The mere inspection of a note presented to the justice, is not such a commencement of the trial of a cause, as to preclude the party from demanding a trial by jury.
    ERROR on certiorari from a justice’s court. The declaration was on a bill, to which the defendant below pleaded the general issue. The bill was shewn to the justice who inspected it, but no proof was called for, or offered. In this stage of the cause, the defendant demanded a trial by jury; but the justice refused to issue a venire, and proceeded to the trial, arid gave judgment for the plaintiff.
    Woodworth, attorney general, for plaintiff in error.
    The words of the act regulating the proceedings before justices, are, “ that it shall be lawful for either party to the suit, or the attorney of either, after issue joined, and before the court shall proceed to inquire into the merits of the cause, to demand of the court that the cause should be tried by a jury ; and thereupon, the justice is required to issue a venire, &c.” The mere inspecting the bill on which the action was brought, was not such an inquiry into the merits, as to preclude the party from the benefit of a trial by jury.
    
      Foot, contra.
    The examination of the bill was a proceeding to inquire into the merits of the cause, within the meaning of the act, and the party was hot afterwards entitled to a venire.
    
    
      
       Rev. Laws. vol. 1. p. 496.
    
   Per Curiam.

The trial had not commenced by merely taking up and inspecting the bill, which was put in issue by the plea. The defendant was not too late in his demand of a jury, and a venire ought to have been awarded.

Judgment reversed.  