
    MEECH a. BROWN.
    
      New-York Common Pleas ;
    
    
      General Term, November, 1856.
    District Court.—Demand of Jury Trial.
    When, in consequence of the absence of a justice of a District Court of the city of New York, a cause is upon the return day adjourned by the clerk, the proper time to demand a jury trial is after joining issue upon the adjourned day, and not upon the original return day of the summons.
    An exception to a decision of a justice of a District Court denying a jury trial, is not necessary to enable the party to procure a review of such decision upon appeal to the Common Pleas.
    Appeal from a judgment of a justice of a District Court of the city of New-York.
   Brady, J.

—On the return day of the summons, the justice was absent, and the clerk adjourned the action. This he had power to do (laws of 1840, p. 123). He had no power to enter the pleadings, and the issue could not then be joined without the consent of the parties, and the issue was not joined. The defendant demanded a jury on such return day, and tendered the fees for the venire, but the clerk informed him “ that that was not the time to demand a jury trial, and that he must wait till issue was joined on the adjourned day.” On the adjourned day, the defendant, after issue joined, demanded a jury; his demand was not complied with, and his application was denied on the ground that it was too late.

The clerk acted properly in deferring the demand for the jury until after issue joined. Such is the provision of the statute on that subject (Laws of the State rel. to city of New-York, 46, § 95). I think, however, that the justice erred in deciding on the adjourned day that it was too late to demand the jury. This refusal was doubtless based upon section 111 of the act of January 4,1820, which provides that it shall not be lawful for either of the parties, after the day in which an order has been made for an adjournment, to demand of the court that such action be tried by a jury. At that time, and until the act of 1840 (supra), the clerk had no power to adjourn any action; and if the justice was absent, the action abated. And it was not necessary, therefore, by any proviso in the act of 1820, to protect the defendant from the effect of an order for an adjournment prior to issue joined; if, indeed, any such proviso could be deemed necessary, had that act itself conferred the power to adjourn on the clerk, given by the act of 1840. I think no proviso even then would have been necessary, and that the act of 1820 in no way conflicts or intervenes with the right of the defendant to a jury, where the adjournment is made before issue is joined, in consequence of the absence of the justice. The act of 1820 contemplates an order for an adjournment by the court, and not by the clerk, and for these reasons the judgment must be reversed. To hold otherwise would deprive litigants in the District Courts of the right of trial by jury in all cases where the justice is absent on the return day of the summons. Such a result is neither within the letter nor the spirit of the acts referred to.

I do not consider it an answer to this objection, that the defendant took no exception to the decision of the justice, and proceeded with the trial. The object of the court in compelling a party to make his objection in time, is to enable his adversary to supply the defect or correct the error which forms the subject of the objection. The exception presents that objection to the court on a review, but the plaintiff withheld his consent for the jury, and thus placed himself beyond the equity of the rule referred to. Independently, however, of that view of the case, I think, under the Bill of Rights and the provisions of the Constitution, the right of trial by jury is so sacredly secured, that when it is denied, and that fact is brought to the notice of a court of review, it imposes a duty upon that court which is paramount to all technical rules of practice—to see that the denial was justified by the laws of the land; and if not, to remedy the wrong by the exercise of its authority.

Judgment reversed.  