It is not pretended, that there was any other irregularity in the proceedings than this: that the Justice himself tried the cause, after a venire had been called for, and issued.
The statute gives to either party the right of electing to have a trial by jury. It was competent to the Justice to deliver the venire to the constable himself; and he was not bound, as is erroneously supposed by some, to deliver it tp either party. Here, however, he did deliver it to the defendant below, who, undoubtedly, suppressed it, mala fide, and for the very purpose of preventing a trial. We are of the opinion, that the Justice had a right to consider him as waiving the trial by jury; and, although the Justice might have issued another venire, he was not bound to do so. The defendant’s conduct was fraudulent. The presumption is, that he had no defence; and to permit him to avail himself of the objection, that he was deprived of the benefit of a trial by jury, would be to allow him to take advantage of his own wrongful act. His election to have a trial by jury, was ■renounced by his suppressing the venire. On a careful examination of the cases on this subject, it will be seen, that the result to which we have come is in accordance with the spirit of the decisions. (2 Caines’ Rep. 137. 7 Johns. Rep. 198. 8 Johns. Rep. 460.)
Judgment affirmed.