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shall be submitted to one jury." Code 1858, sec. 4465; Shannon's Code, sec. 6282.

"If the demand is made in the pleadings the cause shall be tried at the first term before a jury summoned instanter, in the same way that jury causes are tried at law." Code 1858, sec. 4466; Shannon's Code, sec. 6283.

"If the demand is only made after the cause is ready for hearing, the trial will be before a jury summoned instanter upon the like evidence as a suit at law, together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order." Code 1858, sec. 4467; Shannon's Code, sec. 6284.

"The issues shall be made up by the parties under the direction of the court, and set forth briefly and clearly the true questions of fact to be tried." Code 1858, sec. 4468; Shannon's Code, sec. 6285.

"The trial shall be conducted like other jury trials at law, the findings of the jury having the same force and effect, and the court having the same power and control over the findings, as on such trials at law." Code 1858, sec. 4469; Shannon's Code, sec. 6286.

It is held in Allen v. Saulpaw, 6 Lea, 481, that either party to a suit in chancery is, upon application, entitled to a jury to try and determine any material fact in dispute, and that the demand for a jury may be made at any time before the case is in fact heard by the chancellor.

This case is approved and followed in Cheatham v. Pearce, 89 Tenn., 688, 15 S. W., 1080, and it is said that

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in the absence of any rule of court regulating the matter a jury may be demanded at any time before the cause is heard by the chancellor.

It is not shown that the chancery court of Warren county has any rule regulating the matter.

The exact question presented, however, is whether the waiver of a jury and agreement that the chancellor may try as a jury, made before the first trial, may be enforced, over the objection of either party, in any subsequent trial.

It is proper to remark that the statutes regulating the time and manner of demanding jury trials in law cases, embraced in sections 4611 to 4616, Shannon's Compilation, do not apply to the chancery court. Cheatham v. Pearce & Ryan, 89 Tenn., 688, 15 S. W., 1080; Cooper & Stockell v. Stockard, 16 Lea, 140.

The rule is stated in Thompson on Trials, vol. 1, sec. 2, as follows:

"The prevailing opinion seems to be that the waiver of a jury at one term will not estop the party from claiming it at a subsequent term, or after a new trial has been granted."

In the case of Martin v. King, 72 Ala., 359, the court says:

"The question is whether the defendants on the second trial are bound by an agreement to waive a jury entered into upon the first trial. It is our judgment that they are not concluded by such waiver. The agreement, being one in abrogation of a valuable constitution

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al privilege, must, for that reason, be strictly construed. It would require most liberal and enlarged construction to extend its operation beyond the particular trial apparently contemplated by it. It may be that the liti gants would be willing for the particular judge who presided at one trial to act as both judge and jury, and be entirely unwilling to risk his successor who might sit in judgment upon their rights at a subsequent term."

To the same effect is the case of Stedham's Heirs v. Stedham's Ex'r, 32 Ala., 525, and the case of Cross v. State, 78 Ala., 432, which latter case refers to said case of Martin v. King.

The case of Benbow v. Robbins et al., 72 N. C., 422, was a civil action to recover damages for ponding water on plaintiff's land. On the first trial a jury had been dispensed with, it being agreed that the judge should find the facts and declare the law. The judge found the facts for plaintiff, but the case was reversed upon the question of the statute of limitations. The case again being heard in the lower court, instead of trying it anew, his honor held that the parties were bound by the finding of facts at the former trial, which were in favor of plaintiff, and gave judgment for the plaintiff, directing the defendant to take down his dam. In reversing the case the court said:

"Whether the facts are found by the jury or by the court, if it appears that the finding was influenced by misconstruction or misconception of the law, a new trial will be granted by this court on appeal. And in such

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cases the former trial goes for nothing. And where the first trial had by consent of parties, been by the court, a second trial must be by a jury, unless there be a new agreement that the court may try."

The case of Burnham et al. v. North Chicago St. R. R. Co., reported in 88 Fed., 627, 32 C. C. A., 64, was a suit brought to recover the price of a street car traction motor constructed by the plaintiffs for the defendant. Upon the first trial a jury was waived, and case submitted to the court for trial without jury, and the stipulation to waive jury was followed by an order of the court to that effect. A judgment was rendered by the court upon the trial of the case, and the case taken by writ of error to the United States circuit court of appeals, where the judgment was reversed, and a new trial ordered; the case being reported in 88 Fed., 627, 23 C. C. A., 677. On the second trial the plaintiffs asked for a jury trial, which request was denied, to which ruling exception was taken. On appeal the court of appeals held:

"The stipulation to waive a jury, and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in making the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer."

And again:

"A stipulation to waive followed by an order of the

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court is not in the nature of a private contract founded upon a consideration which can only be set aside for fraud."

See, also, Cross v. The State, 78 Ala., 430; Brown v. The State, 89 Ga., 340, 15 S. E., 462; 12th Ency. Plead. & Prac., 270.

In the case of Carthage v. Buckner, 8 Ill. App., 152, it is said:

"It appears that on the first trial the parties entered into a written stipulation of facts agreed upon as proven on the trial, and also that a jury should be waived and the case submitted to the court for trial. On the second trial appellant claimed that under such stipulation a jury should again be waived and the case be tried by the court, and entered a motion to that effect. The action of the court in overruling this motion is one of the errors assigned. In this, we think, no error was committed. The agreement to waive a jury only bound the parties to the mode adopted-of trial by the court―to that one trial. When the case was remanded by this court for another trial in the court below, both parties were restored to their original right of trial by jury. Each party is entitled to as many juries as there are trials, and a waiver of a jury on one trial is expended by that trial.”

There are respectable authorities holding a contrary doctrine, notably the case of Lananhan v. Heaver (Md.), 26 Atl., 866, 20 L. R. A., 759, though this case is not