Appleton, C. J.
The act establishing the superior court for the county of Cumberland, c. 151, was approved 14th February, 1868. By § 6 it is provided, that ‘ if the plaintiff desires a jury trial, he shall indorse the same upon his writ at the time of entry. The defendant shall, within fourteen days after entry, file his pleading, and if the plaintiff has not demanded a jury, the defendant shall indorse on his plea his demand for a jury, if he desires one. Whenever a jury shall be so demanded by either party, the clerk shall enter the fact on the docket, and all other cases, except appeals, shall be tried by the justice without the intervention of a jury, subject to exceptions in matters of law, in term time, or if both parties desire, at chambers. The party demanding a jury shall pay a jury fee, and tax the same in his costs, which shall be the same as in the supreme judicial court, if he prevails; but in cases actually disposed of without a verdict, the jury fee, if any has been paid, shall be returned to the party paying it.’
By Art. 1, § 20 of the constitution of this State, it is provided that ‘ In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right, may be heard by himself and his counsel, or either at his election.’
It will be perceived that the right to a jury trial is given by the statute to either party at his option. Is the provision, by which the party desiring a jury trial is required to pay the customary jury fee, an infringement on the constitutional protection to the right of trial by jury?
The plaintiff, as a preliminary to a trial by jury, has always been held to pay the customary jury fee. If on the trial he succeeds, the amount paid is an item of cost, which the law imposes upon the defendant.
[44]*44By the act under consideration, the defendant desiring a jury trial, must pay the fee. But the amount thus paid is a charge to be taxed in his bill of costs in case of his success. If unsuccessful, the defendant has only paid what, in such case, the law would compel him to pay.
The argument of inability to pay is alike applicable to the plaintiff as to the defendant. Because the defendant may be unable to pay the required amount, the loss of a jury trial would be no greater deprivation of a constitutional right to him, than to the plaintiff, if he were in the same category.
The prepayment of the jury fee is required of the party desiring a trial by jury. It is just as unconstitutional to require it of the plaintiff when he desires a trial by jury, as it is to require it of the defendant under the same circumstance, and no more so. But the prepayment of a jury fee by the plaintiff has never been deemed an infringement upon the right to a trial by jury. Nor can the prepayment by the defendant be so regarded, when it is made at his own option, and followed by the same consequences as when paid by the plaintiff.
In cases tried before justices of the peace, the defendant when unsuccessful and appealing is required to advance the jury fee. But this has never been held an infringement on his constitutional right to a trial by jury. But what matters it, whether the jury fee is paid by the defendant when he is an appellant or when he is not?
In Beers v. Beers, 4 Conn. 535, it was held that the act of the legislature enlarging the jurisdiction of justices was not repugnant to the constitution, as thereby impairing the right to trial by jury. ‘ An instrument,’ observes Hosmer, C. J., ‘ remains inviolate, if it is not infringed; and by a violation of the trial by jury, I understand taking it away, prohibiting it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are, at least, virtually of that character. It could never be the intention of the constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, [45]*45and no regulation, even of the right of trial by jury, could be had. It is sufficient and within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes and even rendered more expensive, if the public interest demand such alteration.’ So in Jones v. Robbins, 8 Gray, 329, it was held that a statute, which authorizes a single magistrate to try and pass sentence in a criminal case, but gives the defendant an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the requirement of his giving bail for his appearance there, or in default of such bail, being committed to jail, is not unconstitutional as impairing the right of trial by jury.
The defendant having desired a jury trial was entitled to it, upon complying with the condition invariably attached to such trials in ciyil cases, — the payment of the jury fee. With this he declined to comply. He stands in the same situation aS a plaintiff would be in, who neglected or refused to comply with this requirement of law. Declining to make the required payment, the defendant must be held as waiving the right to a jury trial, when he refuses to do what is an essential and reasonable prerequisite to its enjoyment. All that remained to be done was a trial by the judge or the entry of a default. The defendant preferred a trial by the presiding justice, and the remaining inquiry relates to the ruling of the justice upon that trial.
When a cause is tried by the presiding justice, he is the final arbiter of the facts. His findings as to them are conclusive on the parties and his rulings as to the law, except so far as they are brought to the consideration of the court by exceptions or otherwise, are final.
The following facts were found by the justice before whom the cause was heard:
The defendants, flour manufacturers at St. Louis, on or about April 20, 1871, shipped to the < plaintiffs, commission merchants at Portland, to be sold by them on commission, four hundred barrels of flour. Two hundred barrels were of the brand called the Con[46]*46queror. On the 12th May following, the plaintiff sold the two hundred barrels of the brand Conqueror, to D. B. Ricker for $7.75 per barrel, and warranted the same to be good sound flour.
On the 15th May the plaintiffs rendered an account of said sale to the defendants, charging themselves with the proceeds of the flour sold, and charging their commissions to the defendants, and drew on them for the balance to square the account, which draft they paid.
On the 19th May, Ricker & Co. notified the defendants that the flour was musty, and was not such flour as they bought, and requested the plaintiffs to take back said flour, which they did, except'twenty barrels which Ricker & Co. had sold, and paid them their loss on the flour sold. The plaintiffs, there being no market for musty and unsound flour in Portland, shipped it to Boston, where it was sold, at a loss of $417.16, which they seek to recover in this action.
It is in proof that the plaintiffs were notified of the unsoundness of the flour within ten days after the sale, and that the same was returned within that time, and the plaintiffs were guilty of no laches in the matter.
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Appleton, C. J.
The act establishing the superior court for the county of Cumberland, c. 151, was approved 14th February, 1868. By § 6 it is provided, that ‘ if the plaintiff desires a jury trial, he shall indorse the same upon his writ at the time of entry. The defendant shall, within fourteen days after entry, file his pleading, and if the plaintiff has not demanded a jury, the defendant shall indorse on his plea his demand for a jury, if he desires one. Whenever a jury shall be so demanded by either party, the clerk shall enter the fact on the docket, and all other cases, except appeals, shall be tried by the justice without the intervention of a jury, subject to exceptions in matters of law, in term time, or if both parties desire, at chambers. The party demanding a jury shall pay a jury fee, and tax the same in his costs, which shall be the same as in the supreme judicial court, if he prevails; but in cases actually disposed of without a verdict, the jury fee, if any has been paid, shall be returned to the party paying it.’
By Art. 1, § 20 of the constitution of this State, it is provided that ‘ In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right, may be heard by himself and his counsel, or either at his election.’
It will be perceived that the right to a jury trial is given by the statute to either party at his option. Is the provision, by which the party desiring a jury trial is required to pay the customary jury fee, an infringement on the constitutional protection to the right of trial by jury?
The plaintiff, as a preliminary to a trial by jury, has always been held to pay the customary jury fee. If on the trial he succeeds, the amount paid is an item of cost, which the law imposes upon the defendant.
[44]*44By the act under consideration, the defendant desiring a jury trial, must pay the fee. But the amount thus paid is a charge to be taxed in his bill of costs in case of his success. If unsuccessful, the defendant has only paid what, in such case, the law would compel him to pay.
The argument of inability to pay is alike applicable to the plaintiff as to the defendant. Because the defendant may be unable to pay the required amount, the loss of a jury trial would be no greater deprivation of a constitutional right to him, than to the plaintiff, if he were in the same category.
The prepayment of the jury fee is required of the party desiring a trial by jury. It is just as unconstitutional to require it of the plaintiff when he desires a trial by jury, as it is to require it of the defendant under the same circumstance, and no more so. But the prepayment of a jury fee by the plaintiff has never been deemed an infringement upon the right to a trial by jury. Nor can the prepayment by the defendant be so regarded, when it is made at his own option, and followed by the same consequences as when paid by the plaintiff.
In cases tried before justices of the peace, the defendant when unsuccessful and appealing is required to advance the jury fee. But this has never been held an infringement on his constitutional right to a trial by jury. But what matters it, whether the jury fee is paid by the defendant when he is an appellant or when he is not?
In Beers v. Beers, 4 Conn. 535, it was held that the act of the legislature enlarging the jurisdiction of justices was not repugnant to the constitution, as thereby impairing the right to trial by jury. ‘ An instrument,’ observes Hosmer, C. J., ‘ remains inviolate, if it is not infringed; and by a violation of the trial by jury, I understand taking it away, prohibiting it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are, at least, virtually of that character. It could never be the intention of the constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, [45]*45and no regulation, even of the right of trial by jury, could be had. It is sufficient and within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes and even rendered more expensive, if the public interest demand such alteration.’ So in Jones v. Robbins, 8 Gray, 329, it was held that a statute, which authorizes a single magistrate to try and pass sentence in a criminal case, but gives the defendant an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the requirement of his giving bail for his appearance there, or in default of such bail, being committed to jail, is not unconstitutional as impairing the right of trial by jury.
The defendant having desired a jury trial was entitled to it, upon complying with the condition invariably attached to such trials in ciyil cases, — the payment of the jury fee. With this he declined to comply. He stands in the same situation aS a plaintiff would be in, who neglected or refused to comply with this requirement of law. Declining to make the required payment, the defendant must be held as waiving the right to a jury trial, when he refuses to do what is an essential and reasonable prerequisite to its enjoyment. All that remained to be done was a trial by the judge or the entry of a default. The defendant preferred a trial by the presiding justice, and the remaining inquiry relates to the ruling of the justice upon that trial.
When a cause is tried by the presiding justice, he is the final arbiter of the facts. His findings as to them are conclusive on the parties and his rulings as to the law, except so far as they are brought to the consideration of the court by exceptions or otherwise, are final.
The following facts were found by the justice before whom the cause was heard:
The defendants, flour manufacturers at St. Louis, on or about April 20, 1871, shipped to the < plaintiffs, commission merchants at Portland, to be sold by them on commission, four hundred barrels of flour. Two hundred barrels were of the brand called the Con[46]*46queror. On the 12th May following, the plaintiff sold the two hundred barrels of the brand Conqueror, to D. B. Ricker for $7.75 per barrel, and warranted the same to be good sound flour.
On the 15th May the plaintiffs rendered an account of said sale to the defendants, charging themselves with the proceeds of the flour sold, and charging their commissions to the defendants, and drew on them for the balance to square the account, which draft they paid.
On the 19th May, Ricker & Co. notified the defendants that the flour was musty, and was not such flour as they bought, and requested the plaintiffs to take back said flour, which they did, except'twenty barrels which Ricker & Co. had sold, and paid them their loss on the flour sold. The plaintiffs, there being no market for musty and unsound flour in Portland, shipped it to Boston, where it was sold, at a loss of $417.16, which they seek to recover in this action.
It is in proof that the plaintiffs were notified of the unsoundness of the flour within ten days after the sale, and that the same was returned within that time, and the plaintiffs were guilty of no laches in the matter.
The plaintiffs offered testimony to show there was a custom among flour merchants of Portland, that if, after sale, flour proves musty and unsound, it is no sale, and the vendee has the right to rescind the sale and return the flour. The custom is not an unreasonable one. Evidence is admissible to prove a custom. Whether it is proved or not is for the determination of the presiding justice, when the cause is tried by him. He found there was such a custom. We cannot here try the correctness of his findings of fact.
The custom being established, the following rulings were made: ‘ That the flour proving unsound, and being returned within ten days after delivery, it was no sale by the plaintiffs to Ricker & Co., and that the plaintiffs being guilty of no laches in the premises, and the flour proving unsound, the defendants should bear the loss sustained in the sale of it.’
These are the only questions of law presented by the exceptions for our consideration. Now the sale in this case was conditional,. [47]*47It was found that such was the custom. The flour was unsound. It was returned within the time fixed by custom. The time was a reasonable one, whether there was a custom on this subject or not. The authority to sell implies the right to give the vendee a reasonable time in which to ascertain the .character of the article sold. The equities of the case are with the plaintiffs. The defendants are not entitled to the price of sound flour for the musty and unsound flour which they shipped the plaintiffs.
No question of law is raised as to the conduct of the plaintiffs in their disposition of the flour. That as matter of fact, it was judicious and for the best interests of the plaintiffs, is fully established by the findings of the judge.
It is said that the plaintiffs had no right to warrant the soundness of flour sold by them on commission. The exceptions present no ruling of law on this subject. It would seem, however, according to some authorities, that when there are no restrictions, a commission merchant would have that right. In Story on Agency, § 102, the law is thus laid down: ‘ An authority to sell a horse includes a power to warrant him; a power to sell goods includes a power to warrant them,’ and in § 59 the law is thus stated: ‘ A servant, employed to sell a horse is clothed, by implication (unless expressly forbidden), to make a warranty on the sale; so an agent or broker, having power to sell goods without any express restriction as to the mode, may sell by sample or with warranty.’ An agent authorized to sell, is presumed to possess the power of warranting its quality and condition, unless the contrary appear; and this, whether the agency be general or special. Nelson v. Cowing, 6 Hill, 336; Andrews v. Kneeland, 6 Cowp. 355. In Upton v. Suffolk County Mills, 11 Cush. 586, the warranty was that the flour should keep sweet during a sea-voyage, not that the flour was sweet at the time of sale. A warranty that an article when sold is sound, is materially different from a warranty that an article shall continue to remain sound for an indefinite period of time, and under conditions obviously endangering its soundness. But it is unnecessary to determine whether a commission merchant has a right to warrant or not, as it is not important to the decision of the case.
[48]*48Upon the whole, we perceive no error of law on the part of the presiding judge, or that any injustice has been done. The defendants, if the flour was musty and'unsound, were not entitled to the price of sound flour. If they have received more than the value of their flour, in consequence of the conditional sale made by the plaintiffs with a right to return, if the flour was found to be unsound, and the flour has been returned for that cause, and been sold again for its full value, though at a less price, the loss should be borne by the defendants, and not by the plaintiffs.
Exceptions overruled.
Cutting, Walton, Dickerson, and Danforth, JJ., concurred.