Spring 1811.
II. District.
Court cannot try a fact, unless the party has an opportunity of asking for a jury.
Baldwin for the plaintiff,
produced the defendant's power of attorney, and moved that the, court might, on proof of the execution of it, order judgment to be entered.
By the Court,
It cainot be done. The proof of the execution of the power, is a nutter of fact which is properly triable by a jury. The defendant, having had no opportunity of praying for a jury, cannot be said to have waved his right thereto.
Motion Denied.
1 Mart. (o.s.) 197
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