Smith & Co. v. Bryce

Citations

• 17 S.C. 538
• 1882 S.C. LEXIS 96

Syllabus

<p>1. In all cases where the right to a trial by jury existed at the adoption of the constitution of 1868, such right is retained, and must “remain inviolate.” Art. I., § 11.</p> <p>2. In an ordinary action on an open account or account stated, presenting no special features of equitable cognizance, tlie parties are entitled to a trial by jury, even thougli the examination of a long account may be involved. Section 295 of the Code must be construed to apply to such cases only as were not triable by jury prior to 1868.</p> <p>.8. In a common law action, an order of reference to take the testimony and state the accounts was objected to by defendant upon the sole ground that no examination of a long account was involved. When the report of the referee was made, and called in the Circuit Court for a hearing, defendant demanded a trial by jury, Held, that all the issues not being referred, there was no waiver of the right to a jury trial.</p> <p>4- Where both legal and equitable issues are involved in a case, each must be tried by its appropriate tribunal.</p> <p>5. In action by a cotton factor against his principal for balance due on an account, the defendant alleged that but for the plaintiffs unauthorized delay in selling the cotton shipped, the account would have been paid. Held, that this was not an equitable defense. ■</p>