Thе only questions of law raised in this case are the refusal to grant a jury-trial, the exclusion of the plaintiff’s wife as a witness, and the аdmission of Hr. Selden’s account-books as evidence.
The рractice of courts of equity in awarding issues in cases like this, does not confer on either party an absolute right to a triаl by jury. Wherever a court of equity, from its less familiarity with discovering and weighing secret motives of action, and measuring men’s ordinary cоnduct and conversation as the evidence thereof, felt the necessity of the aid of twelve men, taken from the mass оf the community, and accustomed to scan nicely the cоnduct of mankind in their daily intercourse and multiplied transactions, it adopted, but did not accept, their assistance as a matter of absolute duty. It is true the court found that in a certain class of cases such assistance was beneficial, but I do not find аny principle compelling a court to avail itself of suсh assistance. It was, therefore, in most cases, a matter оf discretion, and not of right. But it is contended that before the adоption of the present Constitution in this State, the peculiar character of the claim would have entitled the plaintiff to a trial by jury, and, therefore, he was entitled to it here. I do not find in thе case any objection made to the trial of the issues without a jury at the time of such trial. The plaintiff offered his testimony, and the cause proceeded without any objection or рrotest. The Constitution provides that a trial by jury may be waived in such mаnner as the Legislature may prescribe. (Art. 1, § 2.) The Code, in terms, only provides for a waiver by a failure to appear, filing a writtеn consent, or oral consent in open court, entered on the minutes; but it has been settled that entering on a trial without objеction is a waiver. (Greason a. Keteltas, 17 N. Y., 491.) If the plaintiff felt confident that he was entitled to a jury-trial, he might have refused to appeаr; but, having taken the chance of a decision in his favor by a jury of one, he must abide by the consequences. If the plaintiff had сonfined himself to an action for an accounting as to personalty only, he might possibly have
In regard to the admissibility оf the plaintiff’s wife as a witness, the Legislature of this State, in 1862 (Sess. Laws of 1862, 858, § 31), struck off the tag which had been fastened in 1860 to a previous amendment of section 399 of the Code (Sess. Laws of 1860, 787, § 12), and under which, attempts had been made to invade the sanctity of the domestic hearth, and introduсe distrust by making husband and wife witnesses for and against each other. At the time of the trial in this case in 1857 there was no foundation for any suсh rule.
[The remainder of the opinion’ we omit, as it is concerned ■only with the peculiar facts of the case and the weight of testimony.]