Cowen v. Bush , 3 Cow. 343 ( 1824 )

[Woodworth, J.

So far it was very well; but where is the consent that they should go farther, and give judgment ?]

Weston. Numerous cases are cited in Yates v. Russell, where the parties substituted a less number of jurors than 12 to try the cause, upon which judgment was rendered, and holden well.-

[Woodworth, J.

But had the Court any other rights than what were conferred by the agreement of the parties ?• Ig it any thing more than the selection of three by-standers, to arbitrate this matter ?]

Weston. It is like a trial by 3 jurors.

[Sutherland, J.

But in the cases to which you allude, all the forms of a trial are preserved—a venire, return, and a formal verdict entered. The record was perfect.J

Weston. Certainly the same thing was intended here. The election spoken of in the record, implies an agreement that the act of the Court should be equivalent to the finding of the jury. A party for whose benefit the trial by jury is intended, may waive it.

Wait, in reply, was again stopped by the Court, who all agreed that the case was too plain for argument.

Judgment reversed.