8 A. 246 | R.I. | 1887
This is a petition for the new trial of an action tried to a jury in the Court of Common Pleas. The only ground for new trial assigned is that one of the jurors was not qualified, and that the want of qualification was not known to the petitioner or his counsel until after verdict. The petition does not allege that the petitioner inquired as to the matter before trial and was misinformed, and we may therefore presume that he went to trial without such inquiry. The question presented is not a new one. It was substantially raised in this court twenty years ago in a case not reported, and the court then decided, after careful consideration, that the petitioner was not entitled to a new trial. The reason is, a party who goes to trial without such inquiry thereby waives the objection, since he cannot be permitted first to run his chances with the jury, and then, if he loses his case, to take advantage of the objection. The fact that the right of jury trial is constitutional, does not preclude the waiver. The following cases, cited for the respondent, illustrate the rule: Wassum v. Feeney,
Petition dismissed.
