
    The People ex rel. F. H. White v. Hermanus Doesburg.
    
      Quo warranto: Jury tried. When an issue in quo warranto is sent down to the Circuit Court to be tried, the parties cannot be deprived of a jury against their consent.
    
      Heard and decided October 16th.
    
    
      Quo warranto.
    
    The information was filed in this cause to test the right of respondent to the office of clerk of the County of Ottawa. The issue involving a question of fact, to wit; whether some twenty-four votes cast in the township of Spring Lake in said county, and counted for respondent, were legal or illegal, was referred to the Circuit Court for the County of Ottawa for trial.
    On the trial of the issue a jury was duly demanded by respondent; but which demand the Circuit Judge refused to grant, on the ground that the case had been referred to the court for trial.
    It was contended by counsel for respondent upon the calling of the case that it. should be referred back to be tried by a jury.
    
      
      Moore é Griffin and T. B. Church, for respondent, cited
    
      Const, of Mich. Art. 4, § 27; 1 Comp. L. 1861; Sess. L. of 1859, p. 150, § 1; 2 Comp. L. § 4346.
    
      Wm. L. Stoughton, Attorney General, and J. Baker and Geo. Gray, for the People.
    An issue of fact was found in this cause on the third day of May, 1867, and an order made transmitting it to the Circuit Court for the County of Ottawa for trial. The return of that court shows that a trial was had and a finding entered in favor of the relator; and which is returned with the evidence in the cause to this court.
    The first question raised by the record is whether the defendant, under the order referring the case to the Circuit Court for the County of Ottawa for trial, was entitled to a jury. The language of the order is as follows: “That this cause be referred to the Circuit Court for the County of Ottawa for trial; and it is further ordered that said Circuit Court transmit the evidence taken on such trial, together with his findings and opinion thereon to this court.” Can it be claimed under this order that the defendant is entitled to a jury trial? We think not. It is clearly referred to the court to try the case and report his findings and opinions; not the verdict of the jury. No objection having been made to this order, the right of a trial by jury must be deemed to be waived.— Const. Art. 6, §27; Sess. L. 1859, 150.
    But in any event the defendant cannot avail himself of this objection in this cause, for the record does not show that he demanded a jury “at or before the first call of the calendar.” — Bule 61.
    It must affimatively appear that there was error. — 4 Ham. 81; 1 Aik. 24, 380.
    In quo warranto cases the decisions of the court below are to be reviewed upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings when the latter differ from the former. — 4 Seld. 67.
   'The court

held that it was not in its power, and was not intended, to deprive the party of his right to a trial by jury; and that the court below erred in not allowing it. The finding was therefore set aside and a new trial by jury ordered.  