I do not think it necessary to decide whether a demand of a jury may or may not be made after an adjournment to a future day.
The act of January 4th, 1820, relating to assistant justices, section 3, limits the language of the previous act, (by which a jury might be demanded of the court “ after issue joined and before the court shall proceed to inquire into the merits,” &c.,) thus : “ It shall not be lawful for either of the parties, after the day in which an order has been made for an adjournment, to demand of the court that such action be tried by a jury.” (Laws relating to the city of N. Y., pp. 59-60.)
The supreme court, in Bayless v. Crane, (1 Cow. 86,) held, that the mere adjournment did not deprive the party of the right to insist upon a jury. But in that case, the adjournment was to another hour on the same day, at which hour the demand of a jury was made.
There is a plausibility, at least, in saying that the words in the statute of 1820, “ after the day in which an order has been made for an adjournment,” contemplate or imply the right to make the demand after an adjournment; i. e., at a time when it is true as an antecedent fact, that an order has been made for *348an adjournment, and that the only limitation, m this respect, is that the demand shall be made during that day. Otherwise, why did not the legislature say in plain terms, that a jury should not be demanded after an adjournment to a future day?
On the other hand, the statute of 1820 may have contemplated just such a case as Bayless v. Crane, in which, though an adjournment has been had, it was to another hour on the same day.
If the demand of a jury could be in any case resisted when properly made, it would seem unreasonable to allow it to be made after the plaintiff had left court; but it could not. The jury may be demanded “of the court” as an absolute right.
Again, there is much reason and propriety in saying that, after an adjournment of the case to a future day, the justice has no power over the matter; that all action in the case has been postponed; that in respect to the particular case, there is no court, so that the justice can comply with the statute requirement to nominate the jurors “in open court.” While, on the other hand, it may be insisted that the justice may, if the court have not in fact adjourned for the day, proceed to nominate jurors and issue his venire, without the presence of either of the parties; or if this be not so, (and it probably is not,) then, that the demand having been made in open court during the day, the right of the defendant to have a jury has become fixed and absolute, so that if a venire cannot be issued on that day, it must be issued on the adjourned day, although a further adjournment would thereby become inevitable.
But without pursuing this inquiry, I have no hesitation in saying, that the demand, if it may be made in the absence of the adverse party, should be brought to his notice, and an objection that a jury have not been summoned, taken on the adjourned day. The plaintiff, in such event, may choose to regard the demand as sufficient, or consent to a venire, to avoid question. He should, at least, have an opportunity to accede to the defendant’s request, and not he, in effect, compelled, unwittingly, to continue his proceedings in the face of an objection of which he has no notice.
*349We will not reverse, where a defendant makes such a demand in the absence of the plaintiff, and subsequently goes to trial without objection and without the plaintiff’s being apprised of what had taken place, and where the defendant, after a trial upon the merits, raises this objection for first time in the plaintiff"s hearing, on the appeal.
Whether his demand of a jury was within the statute or not, he should be deemed to have waived it. The judgment should, therefore, I think, be affirmed, with costs.
Judgment affirmed, with costs.