Defendant being sued for the value of the use of a house and garden, filed his answer before the suit was set for trial, praying therein that the case might be tried by a jury. This prayer was refused by the Judge of the lower Court, who tried the cause without a jury, and gave judgment against defendant.

Defendant appealed.

The right of trial by jury was improperly refused.

Defendant having prayed for this mode of trial, before the cause was set for trial, was entitled to it. See Code Practice, Art. 495.

The judgment of the lower Court is therefore reversed, and the case remanded for a trial by jury.

Plaintiff to pay costs of both Courts.