
    FARNSWORTH v. BELL.
    (S. C., Thomp. Cas., 31-32.)
    Knoxville,
    September Term, 1848.
    MOTION BY SURETY. Tried by judge without jury, when.
    A circuit judge, without the intervention of a jury, can try a motion to recover money paid by a surety, originally commenced before a justice of the peace having- jurisdiction thereof, and taken to the circuit court. [Because where the fact of suretyship appears upon the face of the instrument or the court record, upon which the motion is founded, no jury is required, a jury being only required to try the fact of suretyship when it does not so appear. Code, sec. 5388.]
    1. Justice has no jurisdiction where jury is required.
    As a justice of the peace has no jury to ascertain the fact of suretyship, the requirement of a jury excludes the jurisdiction of a justice of the peace where the suretyship does not appear upon the face of the instrument or the court record upon which the motion is founded. Vanbibber v. Vanbibber, 10 Hum., 53; Cannon v. Wood, 2 Sneed, 182, 183; Code, sec. 5388.
    
      Farnsworth paid money as surety for Bell, and took judgment for the amount, on motion before a justice of the peace. Defendant obtained write of certiorari and supersedeas, and brought the papers up to the circuit court. The circuit judge gave judgment in favor of the defendant, from which the plaintiff appealed to tbe supreme court.
    Maxwell, for plaintiff in error.
    Arnold, for defendant in error.
   Reese, J..,

delivered the opinion of the Court:

This was a matter which the circuit judge could determine without tbe intervention of a jury, and there was no error in the judgment below.

Judgment affirmed.

2. Jury waived, if not demanded.

By statute enacted since this decision, a jury is waived in all civil suits unless demanded in the manner and time required by the statute. See Code, secs. 4611-4616, and notes.  