Halsey v. Paulison

36 N.J.L. 406

• Court: Supreme Court of New Jersey
• Decided: November 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Bedle, J.

This case was taken to the circuit, and a reference there ordered under sections 252 and 201 of the practice act. Nix. Dig. 754, 743.

* The proper place to enter the dissent was in the circuit minutes. After that, the fact of the reference and the dissent, together with the findings of the referee, should be embodied in the postea, and it, together with the original report, returned to this court. The party desiring a confirmation can then move for it at bar, subject to a demand for a trial by jury at the same term in which the report is filed, or such motion could be made in vacation before the circuit justice, if no demand for a jury trial has been made. If, as is stated in this case, no order for confirmation is desired by either party, the postea and report can be filed, and each party demand a trial by jury, if he has dissented.

The demand should be actually made of the court, and not by a mere entry in the minutes. The report is not to be treated as filed, in the contemplation of the statute, until the postea is also filed. If exceptions are filed and the demand made, the case must be again taken to the circuit for trial upon the issues raised by the exceptions.

The plaintiff not having as yet filed his postea, is not entitled to his venire upon this motion.

Rev., pp. 876, 879, §§ 177, 179.