
    NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v. REUBEN WILBUR, Sr.
    Submitted March 12, 1908
    Decided June 8, 1908.
    1. Tbe timely demand by a defendant in a justice’s court for a jury cannot lawfully be denied because of bis refusal to advance tbe venire fees.
    2. After sucb a denial tbe justice is without jurisdiction to hear the-case and to bis judgment certiorari will lie.
    On certiorari.
    
    Before Justices Garrison, Swayze and Trenchaed.
    For the prosecutor, B. Ten Broecle Stout.
    
    For the defendant, Halsied H. Wainright.
    
   The opinion of the court was delivered by

Garrison, J.

The prosecutor was convicted before a justice of the peace in a proceeding taken under the thirteenth section of the Cruelty to Animals act. Gen. Stat., p. 36. The complaint was sufficient to confer jurisdiction, but it is contended by the prosecutor that the justice lost jurisdiction by his denial of the demand for a jury made by the prosecutor at the proper stage of the proceedings. The denial was placed by the justice upon either of two grounds—first, the refusal of the demandant to advance the venire fees, and second, that the cause was not triable by jury.

Neither of these attempted justifications can be sustained. The first is directly opposed to the rule laid down in this court in the case of McKenzie v. Gilbert, 40 Vroom 184, and the second is also directly ruled by Harman v. Board of Pharmacy, 38 Id. 117. These cases also decide that after such a denial the justice is without jurisdiction to try the cause without a jury. Cary v. Forsyth, Penn. *432; Meirs v. Bussom, 28 Vroom 383.

In view of the rule thus established in this court it is unnecessary for us to consider, as if it were a novel question, whether in such cases certiorari will lie. Upon the authority of the cases cited certiorari is the proper remedy. The judgment of the justice in the present case is reversed.  