Sebring v. Wheedon

Decided October 15, 1811

New York Supreme Court · decided 1811-10-15

IN error, on certiorari, from a justice’s court. Wheedon brought an action against Sebring, before the justice, for neglecting to serve an execution, in favour . y of Wheedon against one Martin Woodruff. On the re- . , . . , . turn clay ot the warrant, the parties appeared, and issue joined, the defendant requested a venire, which wag jssuec[ and delivered to the defendant. The cause 1 was adjourned, by consent of the parties, to the. fid of J J 1 July.

Decided 1811-10-15

Per Curiam.

¶1The judgment must be reversed. There *s no suggestion that the venire was improperly suppressetiby the defendant.. After the jhry process- had been issued, it was not legal for the justice to proceed to try the cause, without a jury. It was competent to.him to have issued a new venire, although the former one was not returned; and this was the course which he ought to have pursued, according to the.doctrine laid down by this court, in the case of Day v. Wilber. (2 Caines, 137.) Nothing was done, on the part of the defendant, that could be construed into-a waiver of a trial by jury, or an assent to a trial by the justice, within the case of Blanchard v. Richly. (2 Johns. Rep. 199.)

¶2Judgment reversed.