
    SWEENY & CARR vs. BARBIN.
    Fall, 1811.
    First District.
    If the plaintiff prays for a jury the defendant may insist on one, without hawing asked it.
    THE plaintiffs had asked for a jury in their petition, and now Ellery moved that he might be allowed to wave the jury, the suit being bro't upon a promissory note, and the defendant's counsel might be compelled to suffer judgment to be entered, unless he wrote the word defence, on the answer, according to the rule of court. Ante 9,
    Hennen, contra.
    The plaintiffs having prayed a jury, the defendant was not bound to make the same prayer. It would have been vain and useless. Lex neminem cogit ad vana seu impossi-bilia.
   By the Court,

Lewis, J.

alone. Neither party can, without his neglect or consent, be deprived of his right to a jury. No latches can be imputed to the defendant. Judgment cannot be cntered. If the plaintiffs wave their right to a jury, the defendant must be allowed to pray for one, or his attorney offered an opportunity of consulting with him, to ascertain whether a defence be not necessary.

Motion overruled.  