To vacate an order entered in a chancery cause, brought to annul a marriage ceremony, submitting to a jury the question of the mental competency of complainant and providing that the verdict when reported back is to be decisive upon the question. The case having been noticed for hearing and no demand for, or mention of, the jury trial having been made, and the parties being in court ready for trial, the court, upon the application of the defendant, made the order in question.

Held, that How. Stat., Sec. 6622, is not mandatory and may be waived; that the court would have been justified in denying the application for trial by jury, upon the ground of waiver; that nevertheless the court had the authority upon its own motion to send the question to the jury, but in such case the verdict is advisory merely.

The writ was, therefore, granted, vacating that portion of the order making the verdict conclusive; but without costs, April 27, 1897.