4 Ark. 158 | Ark. | 1842
By the Court,
It is certainly true, as contended, that each party, under the constitution of the United States, and of our own State, is entitled to the benefit of a trial by jury. But then this is a personal right or benefit, which either or both of the parties may waive. And as the record shows that neither party demanded a jury, according to the provisions of our statute regulating the practice in such cases, it is an express waiver of the right. Rev. St., p. 633, sec. 98.
The judgment was given upon a lost note, as appears from the affidavit filed before the justice of the peace. The issue in the Circuit Court was the same as before the justice of the peace. Rev. St., sec. 186, p. 517. The question, then, to be tried, was, Is the defendant entitled to a set-off? This plea certainly admits the existence of the note, its assignment and loss. The record fails to show what the defendant below offered to set off. Of course, the presumption is, that the Court decided correctly. If the defendant intended to question the execution of the note, or its assignment, he had the right to do so before the justice of the peace, or before the Circuit Court. The instrument set out is certainly assignable, under our statute, and the Court below decided correctly in refusing to dismiss the case from the docket.
Judgment affirmed.