After the appearance of the defendant, and before the judge shall proceed to enquire into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful persons having the qualifications of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number: PROVIDED, That the party demanding the jury shall first pay to the clerk of the court the sum of one hundred twenty-five dollars, which shall be paid over by the clerk of the court to the county, and such amount shall be taxed as costs against the losing party.
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