Opinion of the Court, by

When the appeal was called in its order, the appellant upon an affidavit made by him, of the absence of a material witness, moved to put off the trial. The motion was granted on payment of costs. When they were drawn and taxed, the appellant declined paying them, as they amounted to more than the sum in dispute, and said he would rather proceed in the trial: Whereupon the counsel for the appellee immediately commenced to open the cause, by reading the transcript, and had not proceeded far, before the appellant stopped him, saying he chose to have the cause tried by a jury, the same having been so tried in the court below. The counsel for the appellee, insisted it was too late to demand a jury, the trial having been commenced : and the court being of that opinion, ordered the trial to proceed. The appellant thereupon withdrew, and made no defence. The trial proceeded, and the Common Pleas affirmed the judgment below with costs. This is assigned for Error, and we think the objection is well taken. The appellant who was defendant below, had in this case a right of a trial by jury ■ and he had done nothing, so far as we can perceive, to waive that right. He was not bound by the statute, nor by any rule of court shown to us, to declare his intention to have a trial by jury, before the cause was called and ordered on • and the adverse party could not deprive him of that right, by proceeding, the moment the case was ordered on, to open his case. If the appellant had laid by and suffered his adversary to go through with his opening; or had neglected within a reasonable time, to declare his election, it would have been a different case: but it appears by the return of the Common Pleas, that the appellant *196stopped the counsel for the appellee, as soon as he found he was proceeding to open the cause. We are of opinion therefore, that the court of Common Pleas erred in this matter, and the judgment must be reversed.

Judgment reversed.