Eyck v. Farlee

16 N.J.L. 348

Opinions

Hornblowjer, C. J.

If the rule of the Hunterdon Pleas, were a convenient one, I would not willingly disturb it. Under the first act authorising special terms of Courts in certain counties, Har. Comp. 129, such a rule might be adopted; but by the last act on this subject, Har. Comp. 302, which extends to all the counties of the state, the legislature give a specific rule, requiring an express waiver of trial by jury. No rule of Court then is here wanted. Rules are made for cases in which the statute is silent. The Common Pleas in the present case have reversed the directions of the statute,'and require a demand of a jury; and put the party to the expense of continued entries of such demand. Their rule is oppressive and contrary to the statute.

Ford, J.

A party has a vested right to his trial by jury, unless he waive it. Courts may prescribe the form of, but cannot dispense with the waiver.

The rule of the Common Pleas is contrary to the statute.