56 N.J.L. 115 | N.J. | 1893
Prances H. Myers brought a suit under the-Landlord and Tenant act for the purpose of dispossessing Reginald Ery of a cottage in Chatham township, Morris-county. It was alleged that his tenancy had expired under' his lease.
A venire was issued by the justice and a jury summoned, but when the twelve men appeared by virtue thereof, they' were dismissed after the payment to them of their fees, and the justice refused to proceed with the jury, and tried it himself and rendered a decision adverse to Fry.
The ease was brought to this court by certiorari. And two-questions are presented—First, will certiorari lie? and, second, had the justice the right to dismiss the jury he had. summoned and try the case without a jury, against the protest of the defendant?
The question has been discussed as to the constitutional-right of the defendant to trial by jury in this case, he having demanded it and not waived it. The defendant invokes-article 1, paragraph 7, of the constitution: “ The right of a trial by jury shall remain inviolate, but the legislature may authorize the trial of civil suits when the matter in dispute-does not exceed fifty dollars, by a jury of six men.”
Prior to the constitution of 1844 and up to the act of’ March 4th, 1847 (Nix. Dig. (4th ed.); pp. 494, *422, § 18), if the tenant held over, the landlord would have had to bring' his action of ejectment and the tenant would have been entitled to a jury trial. The act of March 4th, 1847, provided in section 5 that “ the summons shall be served in the manner prescribed by the act constituting courts for the trial of small causes; the suit may be adjourned and either party may demand and have a trial by jury of six men, according to the-provisions of said act.” The procedure under this act is of a provisional and summary nature, to determine, as between the landlord and the tenant, who should have immediate possession of the leased premises. Section 1 of the act of March 8th, 1848 (Nix. Dig., pp. 495, *422, 423, § 26), provides that-
An examination of the entire act shows that the omission •of this provision in reference to jury trial was a mere inadvertence and not a deliberate legislative intent to abolish it in •this class of cases. Under the ejectment proceedings prior to 1847 a trial by jury was a matter of right, unless waived by the parties, and from that time until 1888 there had always been express provision for a jury trial, although for one year •(1847-48) a jury of only six men was named in the act. In view of the question as to the right of the legislature to take .away trial by jury from the defendant in this case, and the fact that up to 1888 there had been legislative provision regarding this right, which had existed for forty years, is it to •be presumed, in the absence of an express clause of repealer affecting this right, that the legislature intended to take it away ? In considering this question, let us examine the Landlord and Tenant act as it existed on this subject after the pass
If the legislature thought it right on the removal of the cause into the Circuit Court to compel the judge there to give the party a jury trial, it is difficult to conceive a legislative intent on a trial before a justice of the peace which would deprive the party of the right to a jury trial in that tribunal.
The writ of certiorari lies in this case because the justice was, under the circumstances of this case, without jurisdiction to try the case himself without a jury