
    LOVE vs. M'COOL.
    A motion was made in the county court of Smith, under the act of 1801, c. 15, s. 1, against the defendant, to recover the sum of $125. It was for the amount of a judgment and costs recovered against the plaintiff by John Ferguson, upon an obligation given by the plaintiff and defendant to Ferguson, in which the plaintiff was security for the defendant as suggested. The judgment was recovered against the plaintiff alone.
    The act provides, that any security upon bill, note, bond or obligation, who hath paid the money for his principal, upon judgment, may recover judgment against his principal upon motion.
    
      A record of the judgment against Love, the plaintiff, was produced,but it did not state that Love was surety for M‘Cool, the defendant. A witness was produced to shew, that the defendant acknowledged, the plaintiff was his security in the bond given by him and the plaintiff to Ferguson.
    Under the act of 1801 ch. 15, on a motion to recover money paid by a security, thecourt cannot receive proof that the applicant was security. Vide acts of September, 1809, c. 69.
    White and Williams opposed the introduction of this testimony,
    agreeably to the constitution, arc. 11, s. 6,7,8,the court could not determine any matter of fact, without a jury. They said it was admitted, the legislature might mould or direct proceedings, but they could not take away the trial by jury altogether, as is attempted in this case. There is no direction in the act for calling a jury in any stage of the proceedings. This being a court of the last resort, if we do not get a trial here, by jury, we cannot any where.
    Barry for the plaintiff,
    argued ingeniously at considerable length, and cited 1 Hay. 28.
   Overton, j.

was inclined to think that the act did not mean to embrace cases where parol proof was necessary to ascertain a fact. Such a construction would be in derogation of the common law, and the words of the not did not require it. The latter part of the first section contemplates the rendition of judgment here, “ upon the production of a copy of the record or judgment, legally authenticated.” If the legislature intended us to be governed by this record, we could render judgment, provided it appeared from it, that the plaintiff was security. But admitting that the legislature designed the act to embrace a case where oral proof was necessary to ascertain facts, we could not do it; for in so doing, we should unquestionably violate the ancient mode of trial by jury, contrary to the evident meaning of those sections of the constitution, which have been referred to. To render judgment without a jury to ascertain facts, where those facts appear of record, would not be contrary to the ancient mode ; the courts always gave judgment in such cases without a jury, but never did, where the merits depended upon matter in pais. These remarks are not intended to apply to the summary proceedings of inferior tribunals. Some time ago it was decided at Knoxville, they were legal, so long as there remains access to this court, where a jury trial could be had. The case is now in the last resort, and if the legislature can take away a jury trial in this case, they can in any, which no person will be so inconsiderate as to contend for.

Powel, J.

It is presumable when the legislature contemplated securities upon obligations, they had in view the usual way of declaring on such instruments, in which it is never mentioned who is security. It occurs to me, therefore, that the act designed, that such proof as is now offered, should be received.— The declaration not shewing who was security, it must be made out by parol proof. But whether the act of constitutional, is a question upon which he look time to consider.

Humphreys. J.

thought with Powel, J.

That agreeably to the intention of the act, evidence ought to be received, to ascertain whether a person is security or not. But in all cases, that evidence ought to be clear beyond a doubt, so as to authorise the court to act, or they would not give judgment in this summary way ; in this case the proof is not clear.

It would be with great delicacy he touched a constitutional question of this kind; yet he deemed himself bound to act; he was sworn to support the constitution and laws. The constitution was the supreme law of the land, and wherever a law was in direct opposition to the constitution, he was bound to support the latter.

An act may modify, but it never can destroy the right of trial by jury. Officers may subject themselves to summary process like this without trial by jury, where such an act is in existence at the time of accepting an office, and the method of proceeding, relates to the office, because they accept of it upon those terms.

Whether the court can give judgment in this summary mode, or whether a jury may be impanneled now, he would give no opinion, as upon the ground of defect of proof, the motion could not be sustained.

Barry then wished to know, if he understood the court to say, that he might now have a jury.

Humphreys, j. said, he must not be understood as agreeing to that position.

Overton, j. If a jury where now to be allowed, you must go through the same routine, as if you had taken out a writ.

Notice must be given to plead and prepare for trial ; for the trial by jury would be a mockery, if a man were not allowed time and means to prepare for that trial. The shortest method that could be taken in such a case as this, and preserve the trial by jury, would be to direct, that notice should be given of the motion, upon return of the notice, agreeably to the time allowed in ordinary cases, to prepare for trial, the case must stand over until the court afterwards.

The legislature intended a summary process, and as we cannot effectuate that intent, and pursue the constitution, I am willing that the motion should be overruled, which was accordingly done. Humphreys, J. and Powel, J. agreeing therein.

Powel, J. said, as there was already a majority of the court of one opinion, it became unnecessary for him to give one, but if he were, he should be of opinion, that agreeably to the constitution, the evidence could not be received. 
      
       2 Am.L.J. 1 Binney 405.
     
      
       1 Binn 405.
     
      
       In consequence of this discussion, as it was understood the legislature in November, 1809, c. 69, authorised the court to impannel a jury.
     