
    BROWN vs. OLDHAM.
    On amotion for judgment under the statute, by a surety against his principal, the judgment againstr the surety and the fact that the plaintiff in the motion is a mere surety, should appear on the record.
    
      Wiley M. Pope, at the Yazoo circuit court, October term, 1828, brought an action of debt against Elias Oldham and Jonathan Brown, founded upon two records from Green county, state of Alabama; one for $121. 38i, and the other for $75.99¿
    These records are described in a transcript thereof, annexed to the declaration of Pope.
    A joint judgment, in favor of Pope vs. Oldham and Brown was obtained at the same term, in the Yazoo eircuit court, for 213 dollars and 81 cents.
    On the 9th of December, 1829, execution issued on the above judgment, and a forthcoming bond was given by Elias Oldham, James N. Old-ham and John Oldham, in which Brown did not join. The execution issued on the forthcoming bond appears to have been satisfied, but it does not appear by whom.
    
      Neither the notes themselves, the judgments thereon, in Greene county, Alabama, nor the judgment in Yazoo, show whether Brown was security to Oldham, or Oldham security to Brown.
    
    At the October term of the Yazoo circuit court, 1830, Elias Oldham moved the court for judgment against Brown, founded on the proceedings aforesaid, and, without giving Brown any notice of said motion, obtained judgment against Brown for 213 dollars. To reverse the judgment rendered in favor of Oldham vs. Brown, on the motion, this writ of error is brought.
    BRIEF OF N. G. HOWARD, ESQK.
    1. Though the statute, in this case, only gives the remedy by motion, ; revised codo, page 142, section 160,) without pointing out the mode of proceeding, we are not, from this, to infer that the legislature intended to have the proceedings ex parte, and to leave the defendant condemned,, without notice, and unheard-
    As the mode of proceeding is not prescribed by the statute, the court will require that mode of proceeding to he adopted in practice, under the statute, which has been pursued in analogous cases, at the common law. This is not a motion of course, pending the suit, where beth parties are in court, and for which no notice is required. It is a motion not of course, and of higher character than even the special motions known in the English books of practice; — such are motions to set aside proceedings, motions in arrest of judgment, for new trials, and to set aside annuities, &c. Tidd, 449-50, 706-8.
    The motion in this case was in the nature of an action; against which the defendant had a right to appear, be heard, and defend himself, and therefore ought to have been notified thereof. It is a new and singular modus operandi to obtain judgment against a man uncited, unsummoned, untried, nnheard, and not to be found in any code of practice, either ancient or modern, under the civil or common law. Should it be sanctioned by this court, it would open the door widely to fraud: 4 Peters, 472; 9 Cranch, 144; 2 Nott & McCord, 25; 1 Marshall, 526; Louisiana Code of Practice, page 212, article 606, title Nullity of Judgments, section 3.
    2. If notice were not necessary, or had been given, the judgment in this case is still erroneous, because it is not warranted by the statute; inasmuch as the remedy given thereby only extends to such persons as have had judgments entered against them “as security, or securities;” and the original judgment here does not appear to have been entered against Oldham, in that character; revised code, 142, sec. 160.
    This statute is in derogation of the common law, and gives a summary and extraordinary remedy, and therefore is to be construed strictly. The statute enumerates only judgments “upon any note, bill, bond, or other writing obligatory,” and, as an enumeration of a part is an exclusion of the rest, it cannot be construed to extend to judgments founded on the transcript of records of another state.
   OPINION OF TEE COURT — by

Chief Justice TURNER.

The error assigned, in this case, is to the judgment of Yazoo circuit court, on a motion by the defendant in error, for a judgment for money alleged to have been paid by him, as security for the plaintiff in error. — ■ That proceeding was founded .on the statute, revised code, pvge 142, sea. 160, of the circuit court law, which provides that, “in all cases, where judgment hath been, or may hereafter be entered up in anyjof said courts, against any person or persons, as security, or securities &c., upon any note, bill, bond, or writing obligatory, &c.; such court is authorized, on motion, to give judgment for the money so paid.

The statute has provided a summary mode of recovery, in behalf of ' sureties who are compelled to pay money for their principals. There is no jury trial given to the defendant, in this mode of proceeding, and not even notice to the defendant. Hence, the court called on to exercise this power, should be exceedingly. guarded in rendering judgment. The facts necessary to show that the plaintiff in the motion is a mere surety, should appear on the record, and proceedings of the court, in which the motion is made.

The judgment against such surety must likewise appear. The evidence of payment of the money, by the surety, must be such as to leave no doubt of the fact. I am almost inclined to think that nothing less than the receipt and return of an officer of court, showing the payment to have been made by the surety, should be received, inasmuch as the right of trial by jury is a constitutional right. But, as the present case does not require a decision of that point, I will not decide it.

The record, in the case before us, does not show the fact that the defendant in error was surety of the other party. He appears to have been sued as a principal, as the joint maker of the notes sued on.

The judgment mnst, therefore, be reversed at the costs of the defendant . in error.  