163 Mass. 21 | Mass. | 1895
The docket showed that the defendant duly claimed a trial by jury, but the clerk of the court, by mistake, put the case upon the jury waived list. The defendant’s counsel, about a month before the case was reached for trial on the jury waived list, made “some search for the defendant’s notice that he claimed a jury trial without finding it, and believed thereafter that his clerk had not given the said notice.” The notice was found among the papers at the time of the trial. The defendant made no motion to transfer the case to the list of cases for trial by a jury, but proceeded to a trial of the case by the court without a jury. After the trial, and before the finding of the court “ had been formally made and entered, the defendant’s claim for a trial by jury was noticed by the justice with the files, and the attention of counsel was called to it, and there
The defendant, through his counsel, having assented to a trial without a jury, ought not afterwards to avoid this by showing that his counsel made a mistake about a fact relating to his own conduct in the case, which due diligence on his part would have corrected.
Exceptions overruled.