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 *88for 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.