
    THOMAS et al. vs. BIBB et al.
    |[ ATTACHMENT — ‘1 ACT FOR PROTECTION OF AGRICULTURAL LABORERS UNCONSTITUTIONALITY OF.]
    1. Objection, what can not he raised for first time in appellate court. — The objection that no complaint was filed can not be made for the first time in the supreme court, when the record shows that the parties appeared by attorney in the court below.
    2. Act of December 28th, 1868, entitled “An act for the protection.of agricultural laborers unconstitntionality of. — The “Act for the protection of agricultural laborers,” approved December 28th, 1868, is unconstitutional, because it does not provide for a trial by jury ; there being no provision for such a trial in the act, or by the general law, either in the probate court, or in the circuit court on appeal.
    3. Same. — An aet of the legislature conferring additional jurisdiction on the probate court, without provisions in the act for an appeal, is not unconstitutional, if an appeal is provided by the general law.
    Appeal from tbe Probate Court of Montgomery.
    Tried before Hon. George Ely.
    Tbe facts upon which the ease turns are set out in the opinion.
    Watts & Troy, and Graves & Ehea, for appellants.
    John G. Finley, contra.
    
   B. F. SAFFOLD, J.

The appellees, upon affidavit, reciting that the appellants were justly indebted to them four hundred dollars for services as agricultural laborers, and that a portion of the crops cultivated by them had been removed from the premises, whereon they were grown, without full payment of all wages due, obtained an attachment returnable to the probate court. This attachment was levied on four bales of cotton, in the possession of Lehman, Durr & Co., who were also summoned as garnishees. The cause was tried by the probate court and judgment rendered against the defendants, the entry of which recites that the parties came by their attorneys, and the evidence being heard the cause was submitted to the court, &c. The defendants excepted to the rendition of the judgment.

We will not consider the assignment of error, in reference to the amendment of the affidavit, because it was not excepted to on the trial, and is not urged by the appellant’s-counsel.

The objection, that no complaint was filed, can not be made for the first time in this court. As the parties appeared by attorney, we are authorized to presume that it was dispensed with or lost. — Allen v. Harper, 26 Ala. 686; Bancroft v. Stanton, 7 Ala. 351.

It is insisted that the probate court had no jurisdiciion to try the case, because the act of the legislature authorizing the proceeding is unconstitutional — 1st. In not providing for an appeal; 2d. In not providing for a trial by jury. In support of the first ground of objection two cases are cited. — Ex parte Haughton, 38 Ala. 570, and Tims v. The State, 26 Ala. 165. The decision in these cases was based upon the fact that the proceedings were before a justice of the peace, and of a criminal character, concerning which no appeal was provided, either by the general law or the special acts conferring the jurisdiction. In the case of Tims v. The State, the court says: “The general law, having no application, and the act itself not providing for an appeal, the constitutional right is not secured! These decisions, moreover, were constructions of a provision of the constitution exclusively applicable to cases tried before justices of the peace. — Const. Art. 6, § 13. The Revised Code, section 2247, provides that “any party to a suit or proceeding aggrieved by a final judgment, decree or order of the judge of probate in such suit or proceeding, may appeal to the circuit or supreme court therefrom,” &c. As to the second ground of objection, the right of trial by jury is confined to cases in which it was conferred by the common law, to suits which the common law recognized amongst its old and settled proceedings and 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 were adminIstered, or in which, was a mixture oí law and equity.— Story on Const. § 1763; Tims v. The State, 26 Ala. 165; Boring v. Williams, 17 Ala. 510. Our State constitution confers upon the probate court jurisdiction of contracts for labor, a court in which the trial by jury does not prevail. In consideration of the changes which are continually happening in the affairs of society — the great change which has recently taken place in our society — it was doubtless thought expedient and wise, while preserving this invaluable right intact, to present to the people a speedier, and (in many cases) a more preferable mode of determining questions of property. The probate court answers generally to the spiritual court of the common law, and, in the matters of its peculiar jurisdiction, no right to a trial by jury ■existed previously, or is conferred by the constitution. The “Act for the protection of agricultural laborers,” (Acts ■of 1868, p. 455,) was designed to put into operation a provision of section 9, of article 6, of the State constitution. How can this provision be made to harmonize with section 13 of article 1, “that the right of trial by jury shall remain inviolate.” It will be observed that the same question is presented respecting the jurisdiction of justices of the peace. — Const. Art. 6, § 13. The court of a justice of the peace may be said to be really a jury court, because, in their quarter sessions, if they inquire of any offense, or decide any cause between party and party, they do it by jury. — Lamb. Eiren, 384. But, without provision by law, they can not impannel a jury ; though the justice’s court has been a jury court in this State since 1858, yet from the inception of the State to that time it was not. The right to the circuit court, and a trial de novo there, were all the time secured by law, and thus was the right of trial by jury preserved. In appeals from the probate court the appellant may go either to the circuit or supreme court, where the issue is tried without a jury, and on the record only. It must be conceded that cases of which jurisdiction is given to the probate court, by the act under consideration, are such as the right of trial by jury attaches to. Neither the special act nor the general law secures the right. We are therefore impelled to the conclusion that the said act is unconstitutional. In view of the great benefit to be derived to the people from the prompt and speedy determination of suits respecting small debts, and, especially those arising out of an interest so great and indispensable as that of agriculture, we feel it incumbent upon us to say that the objection to the act would be remedied either by a provision for an appeal to a jury, or one for an appeal to the circuit court, with a trial de novo, as in the case of justices of the peace.

The judgment is reversed, and as the cause can not be maintained, it is not remanded.  