Smith v. Pollock

Justice Murray delivered the opinion of the Court. This is an appeal from an order made in the Court below, referring the cause to F. J. Lippitt, to try and report on all the issues. The record shows that the appellant was in Court, by his counsel, at the time the order was entered, and made suggestions as to the form, &c., of the order. The appellant filed his affidavit, stating that he had never consented to such reference, and prayed the Court to set the same aside. Art. 1, sec. 3, of the Constitution of this State provides, that “ the right to trial by jury shall be secured to all, and shall remain inviolate forever; but a jury trial may be waived by the parties in all civil causes, in the manner to be provided by law.” The 182nd sec. of the Act to regulate proceedings in civil actions (cases ?) provides that “ a reference may be ordered upon the agreement of the parties filed with the Court, or entered in the minutes.’’ The same act also gives the Court power to refer cases where the parties do not agree, for certain purposes. It is admitted that the reference under the order in this cause would amount to the finding of a jury. The language of the Constitution is explicit; and it is evident that the framers of that instrument intended to give the benefit of the trial by jury in every case. The mere silence of an attorney cannot amount to a waiver of a constitutional right. The act concerning references requires the consent to be in writing, or entered on the minutes. This waiver must appear affirmatively, and not by implication. Neither is the appellant concluded by this act of his counsel. The Act concerning attorneys and counsellors gives an attorney or counsel power to bind his principal by an agreement in writing, filed with the clerk, or entered on the minutes of the Court. No such agreement appears in the record of this case. The order of reference had the direct effect to deprive the appellant of a constitutional right. The waiver of such right must appear in the manner prescribed by law. No such waiver appears directly from the record; and this Court cannot infer it from the silence of the appellant’s counsel. The order of the court below must be reversed, with costs.