Thomae v. Cain

86 A. 533, 84 N.J.L. 103, 1913 N.J. Sup. Ct. LEXIS 112

• Court: Supreme Court of New Jersey
• Decided: April 4, 1913
• Status: Published

Opinion

The opinion of the court was delivered by

Trenchard, J.

The prosecutor was convicted before a justice of the peace in a proceeding taken under sections 26, 27 and 28 of “An act for the settlement and relief of the poor.” Pamph. L. 1911, p. 390.

Section 29 of the act provides that “at any time previous to the hearing of the complaint in the last two sections mentioned, cither party may demand a trial by ¡jury, whereupon said magistrate shall issue a venire facias to summon a. jury of twelve men competent as jurymen to try said complaint.”

The prosecutor made timely demand for a jury, which was denied by the justice because of the refusal of demandant to advance the venire fees. That was erroneous. N. J. Society P. C. A. v. Wilbur, 47 Vroom 266; MacKenzie v. Gilbert, 40 Id. 184.

After such a denial the justice was without jurisdiction to try the case without a jury, and to his judgment certiorari will lie. N. J. Society P. C. A. v. Wilbur, supra; MacKenzie v. Gilbert, supra.

The conviction will be reversed, with costs.