
    Lewis et al. v. Garrett’s Administrators.
    The statute authorizing summary proceeding by motion against the sheriff and his sureties for official misconduct, is not a violation of the constitutional provision which guarantees the right of trial by jury.
    The right of trial by jury may be waived either expressly, or by implication.
    The omission of the sheriff to levy an execution, or pay over money made, is a breach of his official bond.
    After a trial on the merits, the regularity of the pleadings on motion cannot be objected to.
    In proceedings against the sheriff or his sureties on motion under statute, no other process is necessary to bring the defendants into court, than service of notice of the motion.
    In motions against the sheriff on his official bond, it is not necessary to set the bond out, it is sufficient to describe the bond, and state the sureties thereon.
    IN ERROR.
    This was a motion in the Wilkinson, circuit court against William T. Lewis, as sheriff, and the other plaintiffs in error as the sureties on his official bond, to recover the full amount of an execution, with interest at the rate of thirty per centum per annum, according to the statute, and was-grounded on the return of the sheriff, Lewis, on the execution, which was in the following-words, “not levied to April, 1839,” and signed by “W. T. Lewis, sheriff.” After hearing the parties, the court rendered a judgment for the full amount of the execution, and the rate of interest allowed by the statute.
    The following is a copy of the entries by the clerk, the motion and judgment of the court thereon: “ At a circuit court continued and held in and for the county of Wilkinson, at the court house in Woodville, on the 8th day of November, A. D. 1839, came Lewis M. Garret, administrator of Hiram Singleton, deceased; and moved the court for a judgment against Wm. T. Lewis, sheriff, and James Quine, Willis Hunter, and Benjamin Rawlins, his securities on bis sheriff’s bond, which is in the words and figures following, to wit: (after giving the style of the court and term:)
    
      “Whereas, viz: on the 6th day of December,.in the year 1838, a writ of fieri facias was issued from the circuit court of said county, directed to the sheriff of said county, commanding him, that of the goods and chattels, lands and tenements, of Alfred T. Moore, and Henry A. Moore,, he , cause to be made the sum of 5,703 47-100 dollars, and interest at'the rate of 8 per-cent, per annum, from the fourth Monday in October, 1837, until paid, which Lewis M. Garrett, Administrator of Hiram Singleton, deceased, lately in our Wilkinson circuit court, Ly virtue of the statute in such cases made and provided, recovered against them for debt on a forthcoming bond; also the sum of six dollars, by him in that behalf expended, and further cbmmanding the said sheriff do have the said monies before said circuit court, at the court house in Woodville, on the first day of the then next April term, to render .to the said Garrett of'his debt and cost aforesaid; which', said writ of fieri facias afterwards, to wit, on the 17th day of January, at said Wilkinson county, came regularly into the hands of the said William T. Lewis, then and there sheriff of said county, to be .executed and returned according to law; and the said William T. Lewis, still being sheriff as aforesaid, did continually thereafter, until the return term 'of said writ, to wit,-the April term, 1839, .of said court, voluntarily and without authority omit to levy the same, as appears by his' return ; but did return the same into said court at the return term of the said Writ; to wit, the April term, 1S39, of said Wilkinson circuit court, in said county, with the following endorsement by way of return thereon: not levied to April, 1839, [signed] William T. .Lewis, sheriff, contrary to the statute in such cases made and provided; which said- sum of money so due on said fieri facias, nor- any part thereof, hath not been paid by said William T. Lewis, sheriff, as aforesaid, although he, the said William T. Lewis, sheriff, as aforesaid, hath been often requested so to do, to wit, on the first day of May, 1839, in said county of Wilkinson:
    “ Therefore, the said Lewis M. Garrett, administrator, as aforesaid, moves the court for a judgment according to the stat.ute in such case made and provided, against the said William -T, Lewis, as aforesaid, and James Quiné, Willis Hunter, and Benjamin Rawlins, his' securities on his sheriff’s bond, for the sum of six thousand three hundred and ninety-three dollars and eighty-seven cents, being the amount of the debt, interest and costs on said writ of fieri facias mentioned on the return day thereof, and for interest at the rate of thirty per centum per annum from the return day of the said fieri facias, viz. from the fourth Monday of April, 1839.
    
      «To William T. Lewis, sheriff of Wilkinson county, state of Mississippi, and James Quine, Willis Hunter, and Benjamin Rawlins, securities of said William T. Lewis on his sheriff’s bond: — Gentlemen, you will please to take notice, that on Tuesday next, the twelfth day of this present month of November, 1839, or as soon thereafter as counsel can be heard, we shall move the circuit court of Wilkinson county, now in session at the court house in Woodville, for a judgment against you, as stated in the within and foregoing motion, this the eighth day of November, 1839. Dillingham & Walker, for motion. Received, ninth November, 1839, duly executed on William T. Lewis and Benjamin Rawlins, ninth November, 1839; on James Quine, 11th November, 1839; on Willis Hunter, 12th November, 1839; by delivering to each of them personally a true copy of the motion and notice. [Signed] B. F. Hubert, sheriff.”
    And now, to wit, on the 23d day of November, 1839, came the parties, &c. and it is ordered by the court that the said motion be sustained.
    Therefore, it is considered by the court, that the plaintiff, Lewis M. Garrett, administrator of Hiram Singleton, deceased, recover against William T. Lewis, sheriff of said county, and James Quine, Willis Hunter, and Benjamin Rawlins, his securities on the sheriff’s bond, the sum of six thousand three hundred and ninety-three dollars and eighty-seven cents, the amount of money in said writ of fieri facias mentioned in the plaintiff’s said motion, together with thirty per cent, interest thereon, from the 4th Monday of April, A. D. 1839, being the 22d day of April, 1839, until paid.”
    C. P. Smith, for plaintiffs in error.
    1. The plaintiffs in error were not parties to the proceedings in the court below.
    
      The notice which appears by the record to have been directed to the plaintiffs in error, was not “ process” of the circuit court. Rev. Code, page 106. The sheriff was not authorized or required by law to execute or return the same. If the service and return of the notice was not an official act of the sheriff, and therefore not performed under the sanction of his official oath, it is not of a more conclusive character, than if it had been performed by any person holding no official relation to the court. The return endorsed on the notice by B. F. Hubert, as sheriff' of the county of Wilkinson, is not more conclusive evidence of the fact of notice, than would be the written acknowledgment of the parties themselves of due service of notice. Such acknowledgment of notice, or service of notice, would not be sufficient evidence to the court, that the parties sought to be charged, were in fact notified of the pendency of the motion to authorize the court to pronounce judgment against them.
    
      No individual can be charged in any judicial proceeding, unless the court has jurisdiction of the subject matter litigated, and the persons of the litigants. ' It is contrary to the first principles of justice to hold a person bound by the -judgment of a court, who has not been legally notified of the pendency of the action. The action of the court would not only be erroneous and voidable, but absolutely null. The jurisdiction over the person of the defendants can only be acquired by the voluntary act of the party, by process duly executed and returned, or by some proceeding through which he has been either actually or constructively notified of the pendency of the suit. It has been decided by this court, Harrison v. Bostick, 1 Howard, 106, that the written acknowledgment of the defendant indorsed on the capias ad respon-dendum, is not proof of the service of the writ. As the sheriff was not required as a part of his official duty to serve and return the notice in the case under consideration, his endorsement on the notice that he had duly served the same, was not proof of notice to the defendants in the motion. The service was a fact which might have been contested, and required direct proof before the court was authorized to give judgment.
    2. The court below did not acquire jurisdiction of the persons of the defendants by their voluntary act. The defendants below did not enter their appearance or plead to the motion. The recital in the record «that this day came the parties by their respective attornies,” is not an appearance or proof of that fact. 2 J. J. Marshall, 546.
    3. The court below should have overruled the motion. No party is entitled to invoke the aid of a court of justice, unless for the redress of some injury sustained or the enforcement of some right withheld. And in his application for redress, whether by bill in a court of chancery or action in a court of law, he must show by direct averment that the injury has been sustained or that the right has been withheld. The proceedings in the court below were a summary action for the recovery of a penalty from the sheriff for a violation of his official duty, and damages from his sureties equivalent to the penalty incurred by the sheriff. The liability of the sheriff arises from his official character as an officer of the state, and that of his securities from their contract that his duties shall be faithfully performed, and that in case of failure, to pay the penalty affixed to the particular defalcation. Their liability is conditional. It is consequential upon the violation of official duty in the sheriff and his failure to pay the penalty. To entitle the plaintiff in the motion to a recovery against the securities, it is essential that it should be shown that they had failed to comply with the stipulations of their contract. It is not averred in the motion, that the securities had notice of the liabilities of the sheriff before institution of the proceeding, and they failed or refused to pay the amount of money with which their principal was chargeable. No averment of a violation of their agreement was made and none could be proved. Walker, 495.
    4. The liability of the plaintiffs, Quine, Hunter and Rawlings, arises from their contract as joint obligors of the official bond of the sheriff. It is essential that their liability should be shown; and that could only be done by setting out the bond and its condition, or their substance, and averring a non-performance of the same by the persons sought to be charged. It is no answer to say that the bond was evidence of their agreement or covenant, and therefore need not appear in the record. The bond was undoubtedly an essential proof in the case, but would not be admissible unless it should correspond with the averments or recitals of tbe plaintiff’s .notice. • It will not be contended that the court would be warranted in .giving’judgment- against the sheriff on motion, unless the facts upon which his liability depends were distinctly averred in the motion. ' To render these plaintiffs liable it was necessary to aver .in the motion that they, as joint obligors with the sheriff, executed such a bond as the statute required of the sheriff and his sureties, and that they had failed to comply with its condition. '
    5. The act giving this summary remedy, by motion, against the securities for a breach.of the condition of the sheriff’s bond, is a violation of the right of trial by jury. The constitution declares, that “ the right of trial by jury shall remain inviolate.” It is not contended that the right of trial by jury extends to all issues of fact or law, but only to those cases yrhere by the rules of the common law it existed.
    But before we pursue this subject further, we will see what is the effect of the provision in the bill of rights, prescribing that the “ right of trial by jury shall remain inviolate.” Dries that provision reserve simply a privilege to the citizen, which' he may waive, or which by his consent maybe surrendered to the court? Or does it place a limitation on the power of the court, creating a barrier between the proper offices of the jury and the judge, which the legislative authority cannot transcend?
    The fundamental law of the- land has placed the right of trial by jury on the same bases with the inalienable rights of life, liberty, and the pursuit of happiness. It is’not granted as a privilege, but established as a subsisting right, over which the legislative power can exercise no control. If it Cannot be alienated it would seem to follow that it could not be waived. - But if it could be waived, would the waiver in any particular instance confer upon the court or the judge the right to discharge the peculiar offices of the juror? Ad questionem facti, non respondet-judex-, ad questionem legis non respondet jurator. If the right to try an issue of fact could be conferred upon the court, by law, with the consent of the parties, in any civil case, a jury might be dispensed with in a prosecution for a capital offence; for the right of trial by jury in civil cases is placed precisely on' the same foundation as in criminal prosecutions. But I would ask this court if any act'could be framed, under the constitution of Mississippi, which could render valid the finding of a judge on an issue of life and death. The very nature of a court of common law repels such an idea.
    But to what cases at common law did the right of trial by jury extend ? It applied in all suits in which legal rights were to be ascertained and determined in contradistinction to those in which equitable rights alone were recognized and equitable remedies administered. 3 Story’s Com. on Const, p. 645. To this extent was the right of trial by jury secured in the. constitution of Mississippi.
    In the case at bar the liability of the plaintiffs in error arises from a contract under seal. The proper remedy therefore would be at common law, an action of debt on the bond, and is one of the cases to which unquestionably the right of trial by jury applies.
    But it is said that the act giving the summary remedy by motion does not deprive the defendant of the trial by jury, and that as the plaintiffs did not ask for it on the trial below, it could not be said to have been denied them. But if it was not the intention of the legislature to take away the trial by jury, why enact the provision ? Why enact a summary remedy which could not shorten and might lengthen the pirocess? The learned judge so highly eulogized by the counsel for defendant, says, that the law of Tennessee, giving the same remedy on prison bound bonds against the principal and his sureties, intended to take away the trial by jury. Tipton v. Harris, Peck’s Rep. 418. It will be maintained by the court that it was the intention of the legislature to exclude a trial by the jury, and that if they enforce the law, they must dispense with a jury. 1 Call’s Rep. 411.
    The act is void on another ground. - It authorizes the rendition of, a judgment against the securities of the sheriff without notice. It deprives the party of the right to appear and defend the proceeding. It in effect deprives him of a right of trial. If the legislature intended that notice should be given to the securities, it would have directed it. “ The court cannot add a provision which it was the intention of the law to exclude; the law itself must be abandoned, or it must be carried into effect as it is written according to the wishes of its maker.” Judge Haywood, Peck’s Rep. 418.
    
      The act prescribing this summary remedy gives a remedy in favor of the judgment creditor, upon default of the sheriff against his sureties on the bond, which the creditors of the sureties who may have demands arising from similar contracts, do not possess. It therefore gives to the former an exclusive privilege, and is consequently void.
    G. S. Yerger, for defendants in error.
    ■The record shows that a motion was made, that a notice was executed — and if it was not, the record shows the parties appeared by their attornies, which is good if no process was served at all. And the cause or foundation of the action or motion is plainly and succinctly stated in the motion, as entered on the record. I Bibb, 341. Harden, 370.
    In regard to the assignment of error, that there does not appear any bond, or the breach of any bond, it is sufficient to say, the judgment of the court need not set out the evidence upon which it is founded. If there is no evidence to support the judgment, the party must by bill of exceptions set it out, and put it on the record; otherwise the judgment of the court must be presumed to be correct. If no bond, they must crave oyer and deny it on oath. 1 Porter, 432. Vide 2 Munford’s Rep. 266. 1 Randolph, 1. 4 ■Munford, 380.
    The statute, Revised Code, 210, is express, and gives the remedy for voluntarily not levying without authority. The sheriff’s return shows he did not levy, and it does not show why he did not levy, by stating there were no goods to levy on, or that he did not levy because otherwise instructed. His return shows he voluntarily did not levy; and the case is precisely embraced in the statute. The question then is, is the act constitutional ?
    It is supposed the case in 1 Howard, 102, decides this act to be unconstitutional. The cases are clearly distinguishable. This act, allowing the motion against the sheriff, is not an exclusive privilege. (See definition of exclusive privilege in Bouvier’s Law Dictionary.) It does not give one class of creditors of the sheriff’, for official delinquency, a privilege over others; but all are allowed the motion. A remedy given to all the creditors of a bank by motion, is constitutional. Vanzant v. Waddel, 2 Yerger’s Rep.
    
      Oar constitution says, “the trial by jury shall remain inviolate.” The meaning of which, is, that a jury shall not be taken away when it was allowed by the rules of the common law. It does not mean that there must be a jury in all cases. If so, equity proceedings — proceedings for contempt — proceedings of court in quashing executions, and the return on them, in which evidence has to be heard — judgments on demurrer, and on forthcoming bonds, would ail be void.
    In this case the sheriff could have been proceeded against by rule of court at common law without a jury, before the constitution ; and the remedy by motion, is only an extension of the remedy. 3 Littel, 203. 1 Littel, 48. Watson on Sheriff, 202.
    
    The sureties in the bond become bound for the official acts of the sheriff; and if they do not deny on oath the execution of their bonds, that fact is admitted. There is no necessity, therefore, as to them, for a jury to try a fact they admit, and there is no necessity to try the facts, which make the sheriff responsible by a jury, because at common law, the court can do this.
    But, in order for an act to be unconstitutional, it must take ■away or prohibit the trial by jury. An act which merely authorizes a court to try a fact, but does not prohibit a jury trial, is not unconstitutional, because the parties may apply to the court and have a jury, if they wish it. If this is refused, when asked, it may bo error. The right of trial by jury is merely a privilege conferred; it may be waived; a demurrer in law, or a demurrer to evidence takes the case from the jury. If the party, therefore, does not ask an issue byjury, what right has he to complain? 1 Randolph, 1. 1 Washington, 356.
    Upon what principle is it that the law authorizing judgments on forthcoming bonds is sustained ? Here is no jury. It is because the right is not taken away, the party may come in and make up an issue and have it tried; but if he does not do so, he admits the fact of the execution of the bond. 4 Peters’ Rep. 440, 441; 3 Peters’ Rep. 446.
    So, what is the ground upon which laws conferring jurisdiction on magistrates, over twenty dollars, is constitutional ? Because the trial by jury is not expressly taken away; party can have it by appealing. 1 Binney, 424; 2 Murphy, 44.
    
      The court has the power to order an issue, if it is asked. May v.. Woodward, 4 Howard, 389. And in all'cases where courts have the power to try facts, a feigned issue may be awarded.
    The case in 1 Howard, as to sureties, seems to be overruled in the case of Woodward v. May. At least it so far modifies that decision as to show, that upon a motion of this kind an issue may be directed. If it may and the party does not apply, it is his own folly.
    Again, by the law, as it existed before the constitution, for any official delinquency, the sheriff might be proceeded against by a rule of court or attachment. The legislature have a right to say what acts shall constitute such delinquency, and when they further say that he and his sureties shall, for such delinquency, be proceeded against by motion, the sureties agree1 to this; for although the law is not incorporated into their bond or obligation, yet it is to be resorted to, to explain the meaning óf the obligation. 3 Story’s Com. 249 ; 2 Stewart, 227.
    As to trial by jury, &c. see, in áddition, those motions where the privilege is not claimed. 2 Stewart’s Rep. 227; 1 Monroe, 425, 160; Peck’s Rep. 429.
    If he wishes a trial because it is not his bond, or denies he is surety, he must deny it on oath. 1 Porter, 432 ; Cooke’s Rep. 466; Ala. Rep. 171; 1 Stewart, 63, 148; 3 Stewart, 134; 1 Porter, 22; 6 Porter, 48.
    Copy of motion is sufficient notice. 2 Porter, 540; 1 Minor’s Rep'. 160; 1 Pick. 180; 1 Yerger, 148, 460; Cooke’s Rep! 267; 1 Call. 443; 3 Stewart’s Rep. 134; 2 Hawk, 8; 2 Dev. Rep. 12.
    .The cause of action is sufficiently set out. Peck’s Rep. 424. 4 Murf. 398. 2 Porter, 540. 1 Minor, 160. 1 Bibb, 341. Hard. 370.
    Winchester, for plaintiff in error, in reply.
    1. As to being parties to the suits. None, but parties to the record, can be subjected to a judgment. None are parties to the record, but such as are made so by process, or such as voluntarily make themselves so. Process to make persons parties to a suit for the first time commenced in court, must be process in the suit commenced. '
    At common law, process to make' parties to a suit, was first a summons, notifying and requiring them to appear in the cause. If on service of such summons, they did not appear, they did not become parties, and for their contempt process of attachment or distress was issued against them, and in real actions their lands were adjudged to the plaintiff upon feudal principles of lord and vassal. But in personal actions, ex contractu or in tort, they might be prosecuted to outlawry, and by the judgment of outlawry all their property was estreated unto the exchequer and forfeited to the king. So in real actions, if summons was returned non est inventus, they might be proceeded against as an outlaw, for absconding from the service of their lord. But in personal actions, plaintiff might take out a capias upon which when taken they might give bail. If not taken, an alias capias and so on might be taken out. But until brought in by process, they were not made parties, and the trial of the cause could not proceed against them.
    In all these cases, defendants might voluntarily appear without service of summons or capias. If they appeared on summons with or without service, they were not required to give bail for their appearance, and the act by which they voluntarily appeared, made themselves parties to the suit and subjected themselves to the jurisdiction of the court, was by putting in a pica of a higher nature than a plea to the jurisdiction of the court. If a capias was taken out against them, they were compelled to give bail, and if they voluntarily appeared before taken on the capias, their appearance was by putting in common bail or by p Leading a higher plea than a plea to the jurisdiction. An attorney might, under a warrant of attorney, enter an appearance for them, that is, he might plead or enter common bail in their name.
    At common law, there was no other means by which defendants could be made parties to a suit at common law, but by process as above stated, or by putting in common hail, or filing a plea as above stated.
    Such process was always issued before the term at which the suit commenced, it was tested of the preceding term, it was sealed with the chancery seal, it was made returnable on a day in term time succeeding, and it contained a short statement of the nature of the action, to which the court of law was confined.
    
      
      For all tbe above principles, see vol. 3, of Gilbert’s Works, Courts of Common Pleas. See also, Tidd’s Practice and Blackstone’s Commentaries on process to bring parties into court, appearance, &c. ■
    It conclusively appears that at common law, notice in term time to appear to a cause commenced at the same term, was never process to compel parties to appear; nor could persons be made parties defendants, in personal actions, so as to give courts jurisdiction to try a cause and render judgment personam, by the service of notice.
    Is there any statute of Mississippi, which has altered the common law, as to the means of making a party defendant to a personal action? None. But on the contrary, the statute in the Revised Code is express, that all original process, (that is, summons,) and mesne process (as capias, attachment, &c.) to compel the appearance of any person to answer any personal action, shall be tested of the preceding term, sealed by the clerk, be served at least five days before court, be returnable the first day of the succeeding term, and shall have the cause of action endorsed on the same by plaintiff’s attorney or the clerk.
    There is no statute law by which any person can be compelled to appear and become a party to a personal action commenced against him, so as to give the court jurisdiction to render a judgment in personam, by the service of a bare notice in term time, that such suit will be or has been commenced.
    In the cases before the court, plaintiffs in error were not even notified to appear and become parties, but only that a motion would be entered afterwards, which motion was not afterwards entered.
    The only evidence of service is the sheriff’s return, and it being no duty of the sheriff either by statute or common law, the return is not on oath, and not evidence. The notice is not tested, or sealed, or served before court, or made returnable to court, nor does it command the sheriff to serve or return it. It is clear, plaintiff's in error were never made parties by any statute or common law process, to these original suits, commenced upon their bond. Nor did they by putting in common bail, or by plea, or by any other act appearing upon the record, make themselves parties; and the entry of the clerk, ■“ Came the parties by their attornies,” only means such as had previously become parties by process, or by voluntary appearance. This is expressly so decided in 2 J. J. Marshall. And if they became parties by this entry, they were not parties before, and consequently they were only parties to the- argument on the motion, and therefore were afforded no day in court to make their defence, except by arguing against the motion. Not being parties, the judgment against them is erroneous. It is deemed unnecessary to cite authorities on this point. They may be found summed up and learnedly commented upon in Story’s Conflict of Laws, on the subject of judgments in rem, and in personam. There are several decisions too in our own Reports; the case of Girauit v.-, in Walker’s Reports, also Cago v.-, which show the court having no jurisdiction of the person, could render no judgment against the person.
    It is not here contended that the legislature may not alter the common law means of compelling an appearance, and making parties defendants to a personal action first commenced in term time, by a bare notice from the plaintiff; but merely that the legislature never have passed such a law. Should they ever do it, whatever respect might be paid to it in our own courts, I beLieve the courts of all other states would pronounce it a nullity, unless it should appear by the record, that such party at the time was within the state, and received actual notice. And even .then, I should think it a violation of the right of a person, “ not to be deprived of life, liberty or property, but by due course of law.” By virtue of this fundamental and common law right, I believe the legislature have not the power to abolish all original mesne common law process for compelling the appearance of parties to original suits, under the authority or command of the government, and to compel him to appear at a moment’s warning given in term time, at the notice of the plaintiff. If it could be done in the cases now before the court, the power exists to require it in all other suits real, personal and mixed.
    So also, the legislature may abolish alL common law actions, all process for compelling the attendance of witnesses, all pleadings and issues of fact, all rules for days of appearance, and defaults, all record evidences of the compliance or non compliance with rules of proceeding, and substitute suits by motion, trials on affidavits, -without issues of fact or issues of law, &c. ,
    II. As to the right of trial by jury.
    1. The nature and character of this right is: — Not a right granted, which a party may waive by express waiver, or which he may lose by not showing by bill of exceptions that he claimed it, and it was refused to him; a kind of presumed waiver, presumed by the court from the fact, that he has not spread it upon the record, that he did not waive the right. But it is a right reserved by the people — a limitation upon power granted in the constitution — a declaration that in the trial of all controversies for which the only remedy which existed at the time this right was declared, was some one of the common law remedies. In all such cases the power to try the facts in controversy should be upon issue of fact joined, and by the production of witnesses before a jury. According to the law maxims, ad guestionem facti non respondet judex, as it is expressed by Lord Coke; or, ad gues-tionem facti juratores respondent, as it is expressed by the author of trials in pais. The practice and decisions of all the common law courts in all actions at the common law anterior to and from the passage of magna charta and the charter of Henry the Second; the history of the recovery of this right of trial by jury, by the nobles and commoners of England, sword in hand, extorting from king John and the Norman usurpers a restoration of the common rights and liberties of England, as expressed in the magna charta; its maintenance against the power and influence of the clergy in the civil law courts of equity and ecclesiastical jurisdiction; and its insertion in the declaration of rights which pronounced these United States sovereign, independent, and free; the manner and company in which it is introduced in a bill of rights in all our constitutions, state and federal; are such accumulated record evidences that this is the true nature of the right, that the opposite opinion of counsel cannot bear up, had they a thousand times their power of argument, against such a weight of testimony from the history of free governments and common law reports in England and America, from their first origin as nations. 1 repeat, the nature of the right is, a denial of power to officers of government in enforcing the laws over the rights of life, liberty, or property, in civil or criminal suits at the common law, to try the facts upon which the law is. to be pronounced by the judge, and a declaration that this power to try the facts shall belong exclusively to twelve good and lawful men, the peers or equals of the person against whom the law is sought to be enforced. This being the nature and character of the right, it cannot be waived even by an express waiver, either general in all cases pending in court or hereafter to be brought, or in any particular case. It is made the constitutional duty of this court to see that this right remain inviolate, and therefore it must appear by the record in every case to which the right extends, affirmatively, that the right was allowed and not violated; and this court have no right to presume a waiver, because the party entitled to it has not shown by bill of exceptions that he did not waive it. The judge is bound to allow it to him as a constitutional right, whether he asks for it or not, whenever the right extends to his case; and the record must show either that the right did not extend to his case, or that it was allowed him; and unless it so appears affirmatively from the record, this court cannot presume it, and'at the same time preserve the lipftt inviolate.
    
    2. As to the extent of the right: — Under the magna charta of Great Britain, this right extended to all cases of matters in controversy, in actions at the common law; and where the matters could not be tried but by some common law action in a common law court, according to the due course of law as it existed at the time magna charta was passed. It is believed this right is above the power of parliament, although -it is said to be omnipotent. Its repeal would be deemed a usurpation of the fundamental rights and liberties of the English people, and the right would be demanded and recovered back, sword in hand, by the freemen of England, as it was in the time of King John. The right existed only as a right, in suits by action at the common law. In suits in chancery, in suits in ecclesiastical and maritime courts, it never existed as a right, and as a necessary and essential part of the proceedings in a cause. It never existed as a right in proceeding by or upon motion in the common law courts. Wherever a common law court sits for the trial of motions alone, and so authorized by law, then a jury is not summoned, and jury causes are not triable. From the exercise of this right, as appears in the practice of the common law courts of Great Britain, before and since the passage of magna charta, trials of rights by common law remedies, by pleading upon the record to issues of law and issues of fact, by the compulsory production of witnesses, before the jury, to try issues of fact, has always been deemed and considered as an essential part of the right of trial by jury. In all proceedings upon motion, the right to have a jury to try.any facts which might arise, has never existed in the English courts; and all such trials have been had upon affidavits or depositions. The right of trial by jury in the United States, as expressed in the Declaration of Independence, must be considered as a declaration of this right, as brought over and inherited by the American people from their mother country, to the full extent to which it existed in England, at the time of their emigration. Innovations may have been made upon this right in England by statute and by the courts since the passage of magna charta, and also in America since the declaration of our independence; but whatever these innovations may have been at the time the constitution of the United States was adopted, and at the time the ordinance of Congress for the North-Western Territory was extended by act of Congress to the Territory of Mississippi, the right of trial by jury has existed in this state beyond the reach of legislative power, territorial or state, to the full extent to which it existed at the time that ordinance was extended to the state of Mississippi. The question, then, in these cases is, could the obligors of a sheriff’s bond be sued for any breach of the condition of the bond in the ecclesiastical, maritime, or chancery courts, or by motion in the courts of common law, or by any other remedy than the common law actions of debt upon the bond ? If not, the suit upon the sheriff’s bond is clearly within the right of trial by jury, as guaranteed by the Constitution of the United States, also by the ordinance of Congress at the time it was extended to the Territory of Mississippi. Again, the right of trial by jury at the time the Constitution was adopted in 1817, had the same extent to which it existed at common law, so far as it had remained unaltered at the time the ordinance of Congress was extended to Mississippi. By a statute in Turner’s Digest, passed by tbe Territorial Legislature in 1807, sheriffs and their securities could be made liable on their'bond only by action of debt. The act in the Rev. Code is the first act which ever subjected them to a proceeding by motion.
    This act was clearly, then, in violation of the constitution of 1817, and of the constitution of the United States, and of the ordinance of Congress, which was extended to the territory of Mississippi ; for previous to the passage of this act no suit could be maintained on a sheriff’s bond by such summary proceeding, under any statute of the state or territory, or by any usage or practice which existed in the English courts, or by any statute of England extended to the territories of the Union previous to the declaration of our independence. That the right of trial by jury does not exist in a proceeding by motion, has always been a conceded point in all cases which have arisen in the courts of this state, or in the courts of the other states of the Union, where the constitutionality of this summary proceeding has been the subject of investigation.
    In the case cited from Binney it was conceded that the justice had no power to introduce a jury to try the cause; but inasmuch as upon appeal, the law provided that the appellant should have the benefit of a common law proceeding by pleading to issues of fact and trial by jury, it was decided that such proceeding by motion in the justice’s court did not deprive him of the right of trial by jury, as by such appeal the judgment of the justice in the proceeding by motion was rendered a nullity, and the party appealing had the right of trial by jury accorded to him by express enactment of law. But no act exists in this state, by which the plaintiffs in error, by appeal or otherwise, are authorized to convert the summary proceeding by motion to the court, into a plenary proceeding by pleadings and issue to the jury. The cases cited of the decisions of this court, under the statute authorizing a security, who has been compelled by judgment of court to pay a debt for his principal, to proceed by summary motion against his principal, does not apply. For in such cases, the security might have proceeded against the principal in a court of chancery; and, therefore, the right of trial by jury did not extend to cases of that kind. Again, in such cases, the principal and security are both parties to a judgment in court, and motions might always be made in the courts of common law for orders and rules in such cause against the parties thereto, both before and after judgment. It is upon this principle that motions by a plaintiff or defendant in a cause maybe made against the sheriff for any act done by him in the execution of process, original or final, in such cause; because,by his return on the process, he has become a party in such suit, to the extent of the trust confided to him to be executed under the process to be issued in such cause. In fine, from the very nature of a motion, and. its definition in all the law books, no original suit can be commenced by it, nor can any case be found in which a motion has been entertained against any person in any cause until such cause was previously in court, by action commenced otherwise than by motion. By all the authorities, the nature of a motion is defined to be an application^ the court for some order or rule in a cause already in court; and upon such motions, it depends fully upon the rules of the court, whether notice shall be previously given to the party against whom the motion is made or not. And by rule of court, parties are not unfrequently bound to take notice of such motions at their peril, being parties to the cause in court and held bound to take notice, of all steps taken in the cause.
    Could the legislature give the summary remedy against the principal and securities on a collector’s bond, rvithout violating the right of trial by jury ? Clearly not. So of an assessor’s bond.
    There are one or two cases in Alabama and Tennessee, as well as in this state, in which cases of judgment against the sheriff and his securities have been sustained, but in not one instance was the constitutional question raised or discussed. It appeared to be taken for granted that because judgment might be rendered by motion on appeal bonds, forthcoming bonds, -writ of error bonds, jail bound bonds, all of which are bonds given in a cause already in court and not embraced within the right of trial by jury, that therefore the summary motion was equally constitutional upon a sherifi’s bond. But the difference is manifest. The sheriff’s bond is not a bond in a cause in court., The motion is not upon the bond. The judgment is not rendered upon the bond. The securities are not in court for any purpose.
    
      Upon a motion for a judgment on an appeal or writ of error bond in this court, no notice is given, no motion is even made. The securities on the bond ure in court bound to take notice. The facts are all upon the record, as much so as when a verdict of a jury passes into a judgment: So, too, persons may become bound by statutory judgment.
    Ho cited Turner’s Digest, 177, 135. Revised Code, 117. 2 J. J. Marshall, 546. 3 Tucker’s Blackstone, 314. Gilbert, 42. Walker’s Reps. 492.. 6 Comyn, 236. 4 Bibb, 531. 6 J. Reps. 4. 3 Comyn, 557. 1 Hume Hist. Eng. 297. 2 Kent, 12, 13. 4 Dev. N. C. Reps. 3 Woodeson, 364. 3 Blackstone, 351. Lofft’sRep. 65. 3 Story’s Com. 2 Story’s Eq. 696. 3 Dallas, 331.
   Opinion of the court by

Mr. Justice Tkottuh:

The act of the legislature provides «that if any sheriff, &c. shall make return upon any writ of fieri facias, &c.-that he hath levied the debt, damages, &c., and shall not immediately pay the same to the party to whom the same is payable, or his attorney, &c., or shall make any other return upon any such execution,. as will show that such sheriff, hath voluntarily, and without authority omitted to levy the same, or as would entitle the plaintiff to recover from such sheriff, &c., by action of debt, the debt, damages or costs, in such execution mentioned, and such sheriff, &c. shall not immediately pay the same to the party to whom it is payable or his attorney, it shall and may be lawful for the creditor at whose suit such fieri facias, &c. shall issue, upon motion made before the court, &c., to demand judgment against such sheriff, &c. and the sureties, &c., for the money mentioned in such writ, with interest thereon at the rate of thirty per cent, per an-num, from the return day of such execution, and such court is authorized and required to give judgment accordingly.”

Many errors have been assigned by the plaintiff, all of which however resolve themselves into the following questions: First. Is the summary proceeding by motion against sheriff, which the statute provides, a violation of the constitutional provision which guarantees the right of trial by jury? And secondly. Is there sufficient proof in the record to sustain the judgment?

The bill of rights of the people of this state which declares that the right of trial by jury shall remain inviolate, has never been held to extend to questions in the trial of which, a jury is not necessary by the ancient principles of common law. But the right of courts of justice to punish their own officers, for contempts, in not obeying their process or orders, or for abuses in the administration or execution of justice, by summary conviction, “ is as ancient as the law itself.” 4 Black. 283. And Hawkins, in his Pleas of the Crown, says it is clear from the reason of the law, which gives courts a discretionary power over their own officers, in cases of neglect of duty or abuses of their power in the discharge of their duties, that they may punish in the summary mode by attachment, &c. This power is essential not only to preserve the just authority and respectability of courts, but to sub-serve the ends of justice. This being, then, one of the attributes of all courts of justice, by the immemorial sanctions of. the common law, and essentially necessary for their preservation, the statute which conferred the power on the court to render the judgment in the present case, is no infringement of the constitutional rights of the sheriff. It merely regulates the mode of the exercise of the power inherent in the court, of punishing its own officer for a contempt, and makes that power auxiliary to the just rights of the party who has been injured. In most of the states similar powers have been given by statute to their courts. In Kentucky they have a 'statute very much like ours, and they have uniformly, it seems, proceeded according to its provisions, notwithstanding they have very often been met by the constitutional objection which is raised in the case at bar. In the case of Wells a. Caldwell, 1 Marshall, 441, the judgment was on a summary motion against the sheriff for failing to return an execution, and it was objected that the proceeding was in violation of the constitution. But the Court of Appeals affirmed the judgment, observing that the statute violated no right which the sheriff had at common law. The same point is held in Harrison v. Chiles, 3 Littell, 202, which was a summary proceeding against a clerk for extortion in a fee bill, under an act of Kentucky. The court say, that as an officer of the court, and amenable to it, he is liable without the intervention of a jury. In 1 Littell, 48, the same doctrine is recognized.

In relation to the second objection, it is deemed sufficient to remark, that the judgment is very regularly and formally taken in the presence of the parties, who are all stated in the record to have appeared upon the day fixed for the trial, and that according to well settled principles, we are bound to presume, that the court had sufficient proof of all the facts necessary to fix the liability of the sheriff and his sureties. If there was any defect of testimony it should have been made manifest by a proper bill of exceptions.

The return made by the sheriff on the execution is clearly within the statute, for he tells the court that voluntarily and without authority the execution was not levied. If for this omission, thus wantonly made, he would be liable to an action at the suit of the creditor, then surely under the act he is subject to the remedy which was resorted to.

Let the judgment be affirmed.

A re-argument having been awarded on application of counsel,

Judge Trotter

delivered the following opinion:

We have not been able to find any reason for changing the opinion which was given in this cause at the last term. The case was then considered in reference to the liability of the sheriff., to the summary proceeding by motion for failing to obey the order of the court, or to execute or return its process, or any abuse of the administration of justice, in discharging his functions. The power to convict and punish in such cases, in a summary way, was considered to be inherent in the court, and as essential to the maintenance of its just authority, and the due administration of the public justice of the country. This right was shown to be as ancient as the common law itself. As an officer of the court, the sheriff was always liable to punishment in this way: the constitution in guaranteeing to the citizens of this state the right of trial by jury, did not intend to disturb the ancient and well established jurisdiction of the several courts of the country, nor to change entirely the modes of trial as they are regulated by the common ■ law. For if that interpretation were given to it, no order of the probate, court could be sustained, and the decrees of the court of chancery would be mere waste paper. It was" designed simply to guard, the people against the arbitrary or capricious interference of the government; and was conceived and adopted in the spirit of the great charter of English liberty, which provides that no man shall be deprived of his life, liberty or property, except by the judgment of his peers, or the law of the land. Under this charter, the people of England have long flourished in the enjoyment of a boasted freedom, from any responsibility, but to the declared and established laws of the land. To the rule of conduct which these laws prescribe they submit themselves and their property, and are bound by their judgments in whatever mode they may be pronounced; and it is not regarded as any infringement of their rights thus solemnly pledged, that in the arrangement and distribution of the powers of the several courts which have grown up under the common law in that country, modes of trial in many cases are allowed which dispense with the verdict of a jury. For whether the court pronounces the judgment of the law upon facts found by the jury in cases where a trial by jury is required, or upon facts ascertained in other modes when they are permitted, the judgment is still the award of the law; and the inconvenience to which it may subject the party, is the result of the judgment of his peers in the one case, and of the law of the land in the other. It was in this sense that the constitution of the United States has provided that no person shall be deprived of life, liberty or property, without due process of law. And in the construction of this provision of the federal charter, as well as that of the bill of rights securing the right of jury trial, the courts have uniformly held that in the first case the words, due process of law, are to he understood as referring to the course and usage of the common law, as it stood at the time of the adoption of the charter, and in the second case, to questions which were triable by jury at common law. This being the case, proceedings of the kind used in the case at bar, have ever been held not to be at variance with the right secured in the constitution.

But whilst this is admitted to be true in a proceeding against the sheriff alone, yet it is denied where the sureties of that officer are sought to be made liable. The statute gives the remedy by motion against both ; and we are not able to discovei any reason for their exemption from the summary process allowed against their principal. They can have no right to complain of the remedy. They were fully aware, when they bound themselves in the bond with him, of ail the consequences which followed. By voluntarily making themselves parties with the sheriff in all proceedings against him as sheriff, they submitted themselves to the jurisdiction of the court as it then existed by law, and virtually relinquished all claim to the ordinary remedy. They undertook that he should faithfully discharge all his duties, and to be responsible for his delinquency, and they did so according to the law as it then stood; and that law is to be considered a part of the contract, and this as well in fixing the liability of the sheriff as in the method of doing so. And they are as much bound to submit to the remedy as to the liability. If the remedy is binding on him, it is equally so on them. It is on this principle that an award of arbitrators is binding when voluntarily solicited. That a sale of property under a mortgage is a valid transfer. Hence the courts render judgment on motion against all the obli-gors in a forthcoming bond. And it is upon the same principle that this court and other appellate tribunals render final judgment against the sureties in appeal or writ of error bonds. In support of these propositions we refer to the repeated decisions of the courts in Virginia, Kentucky, Tennessee and Alabama, and also to the opinion of the Supreme Court of the United States in the case of the Bank of Columbia v. Oakley, 4 Wheat. 235. See 1 Rand. 2. 1 Wash. Rep. 356. 2 Munf. 266. 2 Yerger, 265. Peck’s Rep. 419. 1 Ala. Rep. 22, 426. 1 Stewart, 63. 2 do. 226. 1 Porter, 432.

It is true, that in many of the cases which have come under our notice, the courts have directed an issue to the jury when the party has demanded it. But the law has not been deemed unconstitutional which simply empowered the court to pronounce the judgment. In the case of forthcoming bonds the courts in Virginia take upon themselves to decide the issue of non est factum, even when the defendant demands a jury. They hold him bound, by the consent implied from the execution of the bond, to submit to the decision of the court. There is much stronger reason for this in motions against the sheriff for official delinquency. And yet, 1 believe, the courts have seldom refused the sheriff or his sureties a jury trial when it has been formally demanded. In this case, neither the sheriff’ nor his sureties asked the court for a jury, or claimed that method of trial. They, therefore, have still less cause for complaint. They appeared in obedience to the notice of the motion, which contains a very accurate and methodical statement of the' grounds of complaint, and contested the right of the plaintiff to recover; and thus voluntarily submitted to the jurisdiction of 'the court. "VYhat right have they now to complain that they were deprived of the right of jury trial ?. In the language of the court in the case of Logwood v. The Huntsville Bank, Ala. Rep. 23, we may say, “That which they had the opportunity .and power to ask, and have not asked, cannot be said to have boen denied.”

It has, however, been very forcibly urged in the argument that in no case can the right of trial by jury be waived, expressly or impliedly. We cannot consent to this interpretation of the bill of rights. The right it secures to the citizen is one which is justly regarded as one of the strongest bulwarks of human rights, and is held dear by the people of this'country. Still it must be considered a privilege which he may waive in any case he may choose. To hold otherwise, would be to restrain the liberty and privileges of the citizen, and not to enlarge them. Carried to this .extent, the argument would deprive the suitor of the power of selecting his forum, in cases where the law gives him an election, if in one the proceeding was without jury.

The bill of rights says, that the right of trial by jury shall remain inviolate. It was not designed by this, to force a jury trial upon the party whether he wished it or not. It is then not the trial, but the right of trial by jury which is rendered inviolate. It is, therefore, as the court say in the case of The Bank v. Oakley, 4 Wheat. 335, a right pro se introducta. And if so, he may assuredly waive it. This reasoning is directly sanctioned by the court in the case of The Bank v. Oakley just noticed. That was a case where an execution was issued by the clerk, not upon any judgment, but upon the simple deposit of a note, which was payable and negotiable at the bank, and which not being paid at maturity, the money due upon it was demanded of the debtor, and not being paid within the ten days afterwards, as required by the charter of the bank, was sent to the clerk with instructions to issue the execution. This was in pursuance of the law of Maryland incorporating the bank. The defendant moved to quash the process, on the ground that the law was a violation of the constitution of that state. But the court refused the motion, on the grounds in substance which have been before detailed. By making the note payable to the bank he had consented to the jurisdiction, and as he also had the right to ask a jury, he would not be considered as deprived of it, until it had been denied him. Hence we think it clear in every aspect of this case, that the defendants cannot object to the judgment on this ground.

It was also urged in the argument, that the motion and notice do neither of them contain any good cause of action against the sureties. That the bond is not,set out or described, and no breaches are assigned. The motion states with great precision the gravamen of the complaint. Recites the judgment, the amount, when rendered, in what court, &c. When execution issued, when it came to the sheriff's hands, and the return, which shows that voluntarily and without authority he omitted to levy it, and that though often demanded of him he had not paid the amount of it, and claims the same, with the statutory damages. It describes the sureties as such on the official bond of the sheriff. This we think was a sufficient statement of the ground, of complaint, and of the breaches. The omission to levy the execution was certainly a breach of the condition of the bond, and the failure to pay the money due on the execution was another. This is as much as the courts ever require in such cases. This is as full and concise a statement of the grounds of the motion, as that in the case of Jameson v. Harper, 1 Porter, 1 Ala. Rep. 432. There the court held that if the surety wished to deny his liability as surety, he must crave oyer of the bond and plead non est factum. And in so holding, the court only recognized the principle uniformly sanctioned by all the courts in similar cases. See 1 Porter, 22. 1 Stewart, 63. 1 Rand. 2. It is a matter of evidence at any rate, and after an appearance and trial it is too late for the defendants to turn the plaintiff round on an objection to the sufficiency of the pleadings. In these cases the pleadings are mostly carried on ore tenus at the bar; and therefore the general rules of special pleading cannot apply. It is a summary proceeding for the ends of justice, and if it appears from the record that the defendants had due notice, or voluntarily appeared and contested the grounds of recovery, the courts will not listen to objections against the mere structure of the motion.

It was insisted that there was no service of process in this case to bring the defendants into court, nor any evidence of a voluntary appearance. It is deemed a sufficient answer to this objection, that no process is required by the statute. The notice is in the nature of process, and when duly served according to the statute answers necessarily, all the purposes of a summons or a capias. The distinctions which exist by the rules of the common law between a capias and summons are virtually abolished by our practice. For our common capias only authorizes an arrest under the proper affidavit to hold to bail. It was certainly competent for the legislature to modify the rules of the common law, and to adopt what form of notice was deemed proper. It is true that this notice is not process of court, but the mere act of the party, and yet I apprehend the effect of service must be the same. The defendant then has his day in court, or may have it. The notice was served by the sheriff, and this though it is not a part of his official duty, may yet be perfectly satisfactory, if it appears to the satisfaction of the court that the notice has been communicated. The record states an appearance of ail the parties. This was good without notice, and is surely so, where the notice is served by an officer of the court. An entry of an appearance by the clerk, on the docket, as by stating the name of the attorney on the same, "has been held good. See Peck’s Rep. 422.

The judgment must be affirmed.  