General
Bayless against Crany-Certiorari from the Assistant Justice's Court of the city of New-York
1 Cow. 86·New York Supreme Court·1823·NY
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Opinion
Bayless against Crany—Certiorari from the Assistant Justice’s Court of the city of New-York.
An assistant justice is bound to issue a venire, if demanded, on the same day on which the first order for an adjournment is made,
after issue, and before proceeding to inquire into the merits of the cause. Proceeding to inquire into the merits, means the investigation of the merits, by an examination of witnesses, or other testimony.
Assumpsit, in the Court below, by Crany against Bayless. Issue was joined July 15th) 1822, and the cause was adjourned, on the plaintiff’s request, to 3 P. M. of the same day, when the defendant requested a further adjournment to the 18th (then) instant, and that the cause should be tried by jury. The Justice granted the adjournment, but refused a veñire. Judgment for the plaintiff. The question was, whether it was too late to demand a venire after the first adjournment.
D. Rogers, for the plaintiff in error.
W. L. Rose, contra.
[MAJORITY — Curia.]
Curia.
By statute, (sess. 36, ch. 86, s. 95, 2 R. L. 374,) it is lawful for either of the parties, after issue joined, and before the Court shall proceed to inquire into the merits of the cause, to demand a trial by jury. By the act, (sess. 43, chi 1, s. 3,) this cannot be done, “ after the day in which an order has been made for an adjournment.” The application for a jury having been made the same day on which the first order for an adjournment took place, but not till after that adjournmenh the only question is, whether the fir,st adjournment waa a “ proceedmg to inquire into the merits.” By “ proceed’nS to inquire, &c.” we understand, the investigation of the merits, by an examination of witnesses, or other testimony. (Cowen’s Treat. 526.) It is said that Cowen cites no authorV ty. He is, however, supported in the.' dictum by Olney v. Bacon, (1 John. Rep. 142,) and there arc repeated decisions of this Court, recognizing a Justice’s right to issue a venire after an adjournment. (Vid. 2 Caines, 137, and Sebring v. Wheedon, 8 John. Rep. 460.)
Judgment reversed.