JULY 1829. Johnston et al. 1. Atwood. Johnston and M'Grew, and against Lewis Parham, who was their security in the writ of error bond. STEWART, on behalf of Parham, the security in the error bond, moved this Court to set aside the judgment as to him. Two grounds were assumed in the argument, on which it was contended that this Court had no power to render such a judgment, to wit: 1st, that it was the exercise by this Court of original jurisdiction, which this Court has not; 2d, that the act under which the authority was exercised is unconstitutional, as there is no mode provided for the trial of the liability of the security by a jury, this being a revising Court merely. PICKENS for the appellee. By LIPSCOMB, Chief Justice. In this case, judgment has been entered during this term against the security in the writ of error bond; and a motion is now made to set aside that judgment, on the grounds, 1st, that in the rendition thereof, this Court has exercised original jurisdiction; 2d. that it is a violation of the constitution to render a judgment without the intervention of a jury. These points have been pressed with much ingenuity and ability by the counsel, and if he has failed to establish his positions, he has at least shewn that much mischief is to be apprehended from rendering judgment in this Court, against securities. But with considerations growing out of this aspect of the case, we can hold no communion. We have only to inquire whether the judgment is authorized by law or not. This Court cannot, it is true, exercise original jurisdiction; but to determine what is an exercise of original jurisdiction, we must test it by applying it to the subject matter on which such jurisdiction has been exercised. Original jurisdiction has been exerted over the subject matter in controversy between the parties litigant in the Court below, and when we render judgment here against the security to the writ of error bond, we are not exercising original jurisdiction, because the subject matter of the controversy had been previously adjudicated, and we are only inquiring if that judgment is correct; if correct, as an incident to the affirmance, judgment is rendered against the security in the writ of error bond. On the record, for so I shall call the writ of error bond, we find the name of a party, not originally a litigant in the subject matter of controversy, but who has come into the record after judgment, and makes himself quasi a par ty to such judgment, by undertaking that judgment may be rendered against him, if the Supreme Court should affirm it. This is the legal effect of his undertaking. And we have no facts to inquire into, as to his right or liability, that the record will not answer. JULY 1829. Johnston et al. V. Atwood. On the 2d ground, it is contended that the security has a constitutional right to be tried by a jury. The constitution, in guaranteeing the right of trial by jury, never intended any thing more than securing to the party a right to have contested facts tried by a jury. It never could have been designed to have so far changed the whole doctrine of evidence, as to have records tried by a jury; when a debtor acknowledges his debt of record, he leaves no contested fact to be tried by the jury. In the case of Logwood v. The Huntsville Bank, it was said by this a Minor's Ala. Rep. 23. Court, that "what had never been demanded could with no propriety be said to have been denied, and that the defendant had never claimed a trial by jury." And it might further be urged with much force, that the demand of a jury trial should be made at such time, and in such form, as the law had prescribed for pleading, and for the ascertainment of the material facts. Were this not required, a party might insist, that he had a right to be heard by a jury in this Court. The security at the time he entered into the writ of error bond, knew all the consequences of thus making himself a party to the judgment in the Circuit Court; he knew that the cause then went to a tribunal where the facts were not inquired into, beyond what was apparent on the record; and his volunteering himself as a party under such circumstances, was virtually a waiver of all claim to a jury trial. There are many cases where a party by his own act, deprives himself of a jury trial. By executing a power of attorney to confess judgment, he may waive his jury trial. Executors and administrators are made parties in this Court, and their rights to some extent adjudicated, without the intervention of a jury, because that they came into the record as parties, after the subject matter of the suit had been tried in the Court below. If fraud has been practised, the Courts of Equity are generally competent to administer relief, we might however as soon suppose fraud and forgery in sending up any other part of the record by the clerk, as that he would certify falsely that the security had joind in the writ of error bond, when in fact he had not. The motion must be overruled. JULY 1829. Acts of 1827 Page 86. ANONYMOUS. 1. When a statute merely gives a remedy to enforce an existing right, with out creating or affecting any right or obligation, it may act retrospectively. 2. The act of 1827, authorizing executions from this Court to issue for costs in certain cases where they are due from the successful party, applies as well to judgments rendered before, as to those rendered after the passage of the act. 3. The costs chargeable against the successful party include all, except Under the act of 1827, a divers executions were issued By JUDGE PERRY. It is a question of no small importance, whether a person entitled to execution under former laws must take the steps authorized by the laws in being at the time of the rendition of the judgment, in order to have the same satisfied, or whether he may avail himself of a statute subsequently passed? This question is involved in the construction of the act above recited, as to its repugnancy to the nineteenth section of the bill of rights, contained in the constitution, which says no ex post facto law, nor law impairing the obligation of contracts, shall be made. From this clause in the constitution, we cannot suppose that the framers of it intended to inhibit the legislature of this State from enacting any law to secure to her citizens, their rights, when the remedy for their enforcement would have to act retrospectively. This opinion is not in conflict with the principle of construction, that statutes should not act retrospectively: that rule is founded on the common law, and took its rise upon a supposed intention in the law makers, not to enact laws calculated to affect anterior rights. The common law construction being founded upon that supposition, its influence cannot prevail when a different intention is clearly manifested. The act then in question, not having impaired any rights or obligations that existed between the parties previous to its passage, but only providing a remedy for their enforcement, cannot be within the prohibition of the constitution. Apply the principle to the case under consideration, and it will be found that the clerk of this Court, for services rendered to parties litigant in it, the price of which are fixed and ascertained by law, and forms a part of every judgment rendered by this Court, had no proper or adequate remedy for obtaining the costs he was thus entitled to from the party who had created them; and can it be said that the legislature authorizing the clerk to issue an execution for the costs thus due him, for services rendered previous to the passage of the law, violated or impaired any right or privilege of the party from whom the costs were thus due? We think not. If it was competent for the legislature to authorize the issuance of an execution for costs afterwards created by either party, the same provisions might apply with equal authority to the costs then accrued, and that such was the intention of the legislature, cannot admit of a doubt. But it is said the executions should be quashed, because there are more costs taxed on the person against whom the execution issued, than he had created in the cause. In most of the cases examined, such appears to be the fact; but it is considered to be only a clerical mistake, and is amend JULY 1829. Anonymous. JULY 1829. Anonymous. able upon motion for that purpose; and consequently forms no ground for quashing the execution. The motion, therefore, to quash the executions, must be overruled. But the costs on all the executions must be retaxed, charging each party with the costs which he or they have created; and for the purpose of ascertaining the amount, suppose A, to be the plaintiff in error, and B the defendant: A succeeds, and B is unable to pay the costs; the costs then created by A include all except the appearance of B, and such acts as are done at his instance. Should B succeed, and A be unable to pay the costs, the same rule must be observed. LECATT V. STRANG. A bill of exceptions signed by the Judge who presided below was present. ed; but the certified record containing one, which the Judge stated to be the true one, none other can be received. THIS was a writ of error from Mobile Circuit Court. By JUDGE SAFFOLD. In this case a motion was made by the appellant's counsel to have a bill of excep tions presented by him, containing the signature of the Honorable A. Crenshaw, received as a part of the record. On an inspection of the transcript of the record as certified by the clerk, another and different bill of exceptions appears to have been allowed on the trial by the same judge; and who now informs this Court that the bill of exceptions included in the transcript, is the only one allowed by him; and that the one now offered to the Court, was unadvisedly signed without having been read, and was never delivered, but was surreptitiously obtained from him. It is therefore the unanimous opinion of the Court that the motion be disallowed, and that the plaintiffs attorney can either assign errors on the exceptions as presented by the transcript, or disregard them. |