by the attorney general for the territory. Accompanying this agreement, the transcript on appeal, together with excerpts from the evidence, were filed in this court January 16, 1894. No attempt has been made to bring the case here in the manner prescribed by the statute. This court has, as authorized by section 7, given directions as to the form in which abstracts and briefs shall be presented to it. These directions have not been complied with. When a criminal cause is brought here upon writ of error or appeal in such a manner that the court cannot pass upon the substantial rights of the parties, the provisions of the statute relating thereto must be strictly complied with. An agreement of attorneys. prescribing the time or manner of taking such appeal or bringing such writ of error here, cannot be substituted in lieu of the provisions of the statute. The appeal is dismissed. All of the justices

1. The proceedings for the arrest and bail of persons who are charged upon affidavit with having removed or begun to remove any of their property out of the jurisdiction of the court with the intent to defraud their creditors, or that they have begun to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors, or that they have property which they fraudulently conceal, as provided in the statutes of Oklahoma (chapter 66, art. 9, § 4026), and upon the terms and conditions of said chapter, and upon the arrest of the person so charged, that he or they may be committed to the jail of the county until discharged by law, and may be so held under arrest until it be found by the court upon hearing that the statutory grounds stated in the affidavit were untrue, or that the money, property, or assets so referred to have been applied to the payment of the debt sought to be recovered in the action, are not violative of articles 5 and 7 of amendments to the constitution of the United States.

2. In proceedings before the probate judge under the Statutes of Oklahoma (chapter 66, art. 9, "Arrest and Bail") the judgment debtor has not a right to a trial by jury upon the hearing of a motion to discharge the order of arrest on the ground that the allegations in the affidavit on which the order of arrest was granted are untrue.

3. In proceedings in arrest and bail the affidavit may be amended, at the discretion of the court, when it contains the names of the parties, specifies the amount of indebtedness, and avers a statutory ground for issuing the order of arrest, no matter how defectively the points may be stated.

4. "Due process of law" is the manner of proceeding which has always been recognized as constitutional in England and in this country in the particular class of cases to which the one in question belongs, the person subjected to it being afforded every reasonable opportunity to defend himself of which the nature of the case will admit.

5. Article 7 of amendments to the constitution of the United States preserves the right of

trial by jury in such classes of cases in which it existed at the time of the adoption of the constitution, in so far as the legal proceedings applied at that time to the ascertainment of the amount for which judgment was to be entered; but the methods to be adopted for enforcing payment of the amount found to be due from the judgment debtor are within the legislative power of the various states.

6. This court will not reverse a finding of facts made by the probate court upon motion to discharge the order of arrest because of the insufficiency of the evidence upon which said finding is based, provided the evidence reasonably tends to support its finding.

(Syllabus by the Court.)

Error from probate court, Canadian coun ty.

Action by the Canadian County Bank against Albert E. Light. An order for the arrest of defendant was issued. A motion to discharge the order was denied, and the court found that plaintiff was entitled to execution against the person of defendant, and the latter brings error. Affirmed.

Plaintiff in error, on May 22, 1893, executed and delivered to defendant in error his promissory note for $355.75, due in 15 days from date, but upon the payment of interest in advance extensions were made up to February 7,1894. It appeared in evidence that plaintiff in error made a loan of $355.75 from the Canadian County Bank on March 22, 1893, and agreed to pay for the use thereof at the rate of 2 per cent. per month until paid, and mortgaged a quarter section of land, upon which he held the final certificate, to the bank, to secure the payment of the loan; and thereafter, on August 25, 1893, he was notified that final proof on the land was suspended because the notice to make proof was signed by the receiver instead of the regis ter, as required by law. Thereupon he agreed with one Weedman to convert his cash entry into a homestead, and to immediately thereafter relinquish to Weedman in consideration of $1,600. This scheme was planned, and the money thereafter paid in cash to plaintiff in error by Weedman. Plaintiff in error gave no notice to the bank that the mortgage given to it as security was then worthless, and that he had arranged with Weedman to make it so, but, pending the execution of the agreement to convert the land and defraud the bank of its lien, he renewed his note in the bank, still concealing from it this fact. In the action upon the note he pleaded the statute of usury against his contract with the bank, and claims to have paid out the whole amount received from Weedman upon a debt due his brother, and in excursions to Colorado and other states. On February 21, 1894, defendant in error brought its action on said note in the probate court of Canadian county to recover the amount thereof, and claiming interest from and after February 7, 1894. On the same day that summons was issued the plaintiff below filed its affidavit for an order of arrest of Light under the provisions of article 9, Code Civ. Proc., alleging the following grounds, viz.;

(1) Light had converted his property into money for the purpose of placing it beyond the reach of his creditors, and (2) that he has property which he fraudulently conceals. The defendant, Light, was arrested on the day the order was issued. On February 22d defendant below filed a motion to discharge the order of arrest on the ground that the averments in the affidavit upon which the order was issued were insufficient in law, and pending the hearing of the motion to discharge the order of arrest Light filed a second motion to discharge the order of arrest on the further and additional ground that the facts set forth in the affidavit were untrue. On February 27th the cause was heard before the probate court upon the motion to discharge, and over the objection of Light the court permitted the bank to amend its affidavit, which was accordingly done, and, on leave being granted, Light's motion to discharge was extended to cover the amended affidavit. Upon the hearing of the motion to discharge the order of arrest the court denied the motion, and found that the plaintiff was entitled to execution against the person of Light, and ordered that he be placed in jail until the judgment should be paid, or that defendant be discharged according to law. The defendant below brings the case here for review, alleging error as follows: (1) The court erred in permitting the plaintiff below to amend its affidavit for arrest in substance by alleging additional grounds to those set forth in the original affidavit. (2) The court erred in denying the motion of the defendant below to discharge said order of arrest on the ground of the insufficiency of the affidavit for arrest. (3) The court erred in rendering judgment that execution be issued to the sheriff to arrest the defendant and imprison him until said debt and costs should be fully paid, or defendant discharged according to law.

Forrest & Gunn, for plaintiff in error. Gillette & Brown, for defendant in error.

MCATEE, J. (after stating the facts). The first contention of plaintiff in error is that the court erred in permitting plaintiff below to amend his affidavit for arrest in substance by alleging therein additional grounds for arrest to those set forth in the original affidavit, against the objection of the defendant below. This is incorrect. The only allegation not made in the original affidavit which appears in the amended one is "that he has disposed of his property with intent to defraud his creditors." It had been stated in the original affidavit "that said defendant, Albert E. Light, has converted his property into money for the purpose of plaIcing it beyond the reach of his creditors." If one converts his property into money for the purpose of placing it beyond the reach of his creditors, that will be disposing of it with intent to defraud his creditors. The

other amendments of the affidavit permitted by the court were enlargements of what had been stated in substance in the original affidavit. The whole amendment was such as the court was authorized to permit in order to make the proceedings in the case to conform to the provisions of the Code of Civil Procedure (St. Okl. 1893, § 4017, p. 784). In states where, by the civil procedure, amendments to the affidavit are authorized, it is held that "when the affidavit contains the names of the parties, and specifies the amount of the indebtedness, and avers a statutory ground for issuing the writ, however defectively any of these points may be stated, it may be amended." Drake, Attachm. § 113; Booth v. Rees, 26 Ill. 45; Moore v. Mauck, 79 Ill. 391; Wells, Fargo & Co. v. Danford, 28 Kan. 487; Robinson v. Burton, 5 Kan. 294. The rule thus declared is upon that provision of the Civil Code which provides that: "The court may

* in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding,

or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when the proceeding fails to conform in any respect to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment." The rule covers the amendment permitted by the probate court, and is applicable to proceedings in arrest and bail, as in attachment.

The second assignment of error is that the court refused to discharge the order of arrest because of the insufficiency of the affidavit for arrest, but the plaintiff in error does not state in his brief any respect in which the affidavit is insufficient, and, as it conforms to the requirements of the Code of Civil Procedure, it is sufficient. It is further assigned for error that in denying the motion of defendant (plaintiff in error) to discharge the order of arrest because the facts set forth in the affidavit for arrest were untrue, the court erred. The court below passed upon the facts, and they will not be reversed here unless the rulings is clearly against the weight of evidence.

It is further claimed by plaintiff in error under his fourth assignment of error that the provisions of the statute (chapter 66, art. 9, §§ 148-154, Code Civ. Proc.) are in contravention of the constitution and laws of the United States, and that the order of the probate judge to the sheriff of Canadian county to arrest the plaintiff in error, and hold him to bail in double the sum of $355.75, as stated in the affidavit for arrest to be due, was in violation of article 5 of amendments to the constitution of the United States, providing that "no person shall be

* deprived of life, liberty or property without due process of law;" that by the

arrest he was deprived of his liberty without due process of law; that the arrest and imprisonment of a citizen on an affidavit, to be kept under arrest or bail until discharged according to law, is not in any sense "due process of law," but that due process of law implies jurisdiction and trial; and further, that article 7 of amendments to the constitution of the United States provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This is a suit at common law, and the proceedings in arrest in this case are in violation of the constitution. Upon this contention it is to be said that "due process of law" is the law in its usual course of administration through courts of justice. 2 Story, Const. §§ 1941-1952; Murray's Lessee v. Improvement Co., 18 How. 272; Wynehamer v. People, 13 N. Y. 378. It means in each particular case such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the preservation of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. Stuart v. Palmer, 74 N. Y. 191; Cooley, Const. Lim. 355. It is probably wiser to leave the meaning of "due process of law" to be evolved "by the gradual process of judicial inclusion and exclusion as the case presented for decision shall require, with the reasoning on which such decision may be founded." Mr. Justice Miller, of the United States supreme court, in Davidson v. Board, 17 Ala. Law J. 223. "The peculiar necessities which call for the action of an officer, and whether the power was exercised in the same manner prior to the adoption of the constitution without being regarded as a violation of the principles of Magna Charta, may be considered; and if it be found that like proceedings have always been recognized as constitutional in England and this country, and if the person subjected to them is accorded every reasonable opportunity to defend his individual rights which the nature of the case will admit,the case being one in which the end sought to be obtained is lawful,-the statute cannot be said to deprive a party of the benefits of due process of law." Judge Cooley, in Ex parte Ah Fook, 49 Cal. 406. It does not necessarily require a trial by jury except in regular common-law proceedings. Walker v. Sauvinet, 92 U. S. 90; Reagh v. Spann, 3 Stew. (Ala.) 108; In re Curry, 1 N. Y. Civ. Proc. R. 319; Church v. Kelsey, 7 Sup. Ct. 897; Donahue v. County of Will, 100 Ill. 94; Hilton v. Merritt, 110 U. S. 97, 3 Sup. Ct. 548; People v. Haws, 37 Barb. 440; The J. W. French, 13 Fed. 924; Risser v. Hoyt, 53 Mich. 185, 18 N. W. 611. So of article 7 of amendments to the constitution. The constitutional guaranty in the various states, that the right to trial by jury shall be preserved and shall remain inviolate, refers to

the right as it existed at the time of the adoption of the constitution. That amendment provides that "in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," etc. That declaration provides that the right of trial by jury shall be preserved; that is, kept just as it was at the time of the adoption of article 7 of amendments. This provision does not extend, but preserves, the right of trial by jury. Cases to which it was not then applicable are still exempt from its application. The provision is also made in such terms as to justify the view that it was intended to apply solely to the ascertainment of the amount or value in controversy, and for which judgment should be entered up, and not to the method of enforcing the judgment of the court, and to the means within the power of the court to compel compliance with its orders. Such methods of procedure for enforcing compliance with the orders of the court are within the power of the legislatures of the various states, and the proceeding for arrest and bail herein referred to is among these means. "Due process of law" carries with it, therefore, the right of trial by jury, when trial by jury has been the usual course of administration in the particular class of cases through courts of justice to which the one in question belongs. What was, at the time of the adoption of the constitution of the United States, the usual course of administration through courts of justice, was grafted into that instrument under the name of "due process of law." That term carries with it the right of trial by jury in all cases in which trial by jury was a part of the usual course of administration through courts of justice at the time the constitution was adopted. It does not give the right of trial by jury in cases in which it did not exist at that time. It does not give it in the large fields of equitable and admiralty jurisdiction. It does not take away from the courts the power to punish contempts summarily without the intervention of a jury, as it existed at the time of the adoption of the constitution. At the time of the adoption of the constitution in proceedings in chancery, if the debtor was ordered to deliver goods or property, and refused to do so, he was adjudged guilty of contumacy, and was, in aid of and to enforce the order of the court, subject to arrest and imprisonment until he obeyed the order. The order was made, not as a punishment for guilt or crime, but as a means within the power of the court to compel obedience to its decrees. The order was made only when the debtor was found to have property, and the court found it within his power to obey the order. The proceedings in aid of execution and the proceedings of arrest and bail provided for in chapter 66, art. 9, Code Civ. Proc., "Arrest and Bail," are substitutes for the former power of the

court to enforce compliance with its decrees in such chancery proceedings, and nothing more, and take nothing away from the rights of the judgment debtor as those rights existed at the time of the adoption of the constitution, as is abundantly shown by the authorities hereinafter cited. The guaranties relied upon by the plaintiff in error are interpreted by the great preponderance of authority in the courts as leaving the rights of creditors and debtors unimpaired. As the right to compel the production and delivery of property or money not exempt from execution, found in the ownership or control of the debtor at the time of execution levied, by arrest and imprisonment, existed at the time of the adoption of the constitution, so it exists now under the proceedings in this case. It is now, and was then, a method of coercion adopted against the debtor who willfully disobeys the order of the court. It is no greater and no less, but the same, "due process of law" guarantied by the constitution. When the property or money is delivered in obedience to the order of the court, or the court is satisfied that the plaintiff in error is incapable of obeying the order to deliver, it will be its duty to order his discharge.

But in refusing at the hearing to discharge the order of arrest, which has been declared upon as error, the court affirmed the statements of the affidavit of arrest, including the statement that the defendant has property which he fraudulently conceals. A finding of fact by the probate court will not be reversed, or its correctness called in question here, if the evidence appears to support its finding, and that court having found it sufficient. The legislature may designate the cases in which the court may punish summarily. The right of trial by jury is just that right as it existed at the time of the adoption of the constitution, and at that time it was not the right of the judgment debtor to have a trial by jury under proceedings in chancery to enforce obedience to the orders of the court, when the court found from the facts that obedience was possible; and it is not now his right, under the proceedings in this case, in which the plaintiff in error has been personally arrested in order to compel him to pay money which the court below found to be in his ownership and control, and which he has refused to do, to demand a trial by jury. If it had been his right, he has waived it by going to trial before the probate judge without demanding a jury. In re Oldham, 89 N. C. 23; State v. McClaugherty (W. Va.) 10 S. E. 407; In re Burrows (Kan.) 7 Pac. 148; Kimball v. Connor, 3 Kan. 414; Kearney's Case, 13 Abb. Pr. 459; Ex parte Cohn, 55 Cal. 195; Ex parte Smith, 53 Cal. 204; State v. Burrows, 33 Kan. 10, 5 Pac. 449; Murphy v. People, 2 Cow. 815; State v. McClear, 11 Nev. 39. The appeal is dismissed and the judgment below affirmed. All the justices concur.

(2 Okl. 553)

ROGERS et al. v. BONNETT et al. (Supreme Court of Oklahoma. Sept. 7, 1894.. CONTRIBUTION BETWEEN WRONGDOERS-JURISDICTION OF PROBATE COURT-FINDINGS.

1. The Board of Trade of Kingfisher, a corporation incorporated with $150 as its capital stock, of which less than $75 was paid up. contracted with A. to pay him $700 upon the erection of a flouring mill, but failed to do so; and upon suit brought by A. against the corporation in the district court for Kingfisher county, and judgment having been obtained against the corporation for the sum contracted for as above, and execution issued, it was found to be without property and insolvent. A receiver was appointed, who brought suit in the district court against the plaintiffs and defendants, as directors, to recover against them, in their individual and private capacity, upon the contract with A., and recovered a judgment against them for the sum of $675, which was compromised and paid in different proportions by S., B., W., and R., defendants in error. S. and B. brought suit in the probate court against W. and R. and the other parties to the suit for contribution. Held, that the contract made by defendants and plaintiffs with A. was in violation of section 10, art. 3, c. 18, St. Okl. 1890, and was illegal, and known by plaintiffs and defendants to be so, or, if not known to be so by them, their ignorance of its illegality was inexcusable; that plaintiffs and defendants were joint wrongdoers, and contribution will not be enforced.

2. The probate court has the same jurisdietion as that of the district court, in suits at law or in equity, for the recovery of any sum of money not exceeding $1,000, exclusive of costs, subject to the exceptions stated in section 1, art. 15, c. 18, St. Okl. 1893.

3. The refusal of the court below to state findings of fact in writing and conclusions of law upon them, when requested so to do by either party to a suit, before judgment, is reversible error.

(Syllabus by the Court.)

Error from probate court, Kingfisher county.

Action by W. J. Bonnett and D. W. Solomon against F. S. Rogers and Z. J. Wallace. Judgment for plaintiffs. Defendants bring error. Reversed.

T. G. Cutlip, for plaintiffs in error. W. A. Taylor, for defendants in error.

MCATEE, J. This action was begun in the probate court of Kingfisher county on the 17th day of May, 1893, to enforce contribution from alleged joint obligors upon a contract made by the Board of Trade, a corporation of the city of Kingfisher, with one C. D. Addison, by which said corporation bound itself to pay $700 to Addison upon the erection and maintenance by him of a flouring mill in the city of Kingfisher. Addison erected and maintained the mill, and demanded of the corporation the stipulated sum of $700, and received therefrom the sum of $23, and no more. On October 13, 1891, Addison sued the corporation in the district court for the balance of the sum of $700 remaining unpaid, obtained judgment thereon, and caused execution to be issued thereunder, upon which return was made of "No property found.” Addison thereupon applied to the district court

for the appointment of a receiver for the corporation, alleging that the subscribed capital stock was but $150; and that the amount of the paid-up capital was less than $75; and that the amount agreed by the corporation to be paid to him (Addison) was greatly in excess of the capital stock, in violation of law; and that the directors were liable to him in their individual capacity for the amount of the indebtedness remaining due upon the contract made with him. The court appointed a receiver, and directed him to commence suit against the directors, among whom were the parties to this suit; and the receiver thereafter obtained against them therein a judgment for the sum of $673, which was afterwards compromised and paid in various proportions by Solomon, Bonnett, Wallace, and Rogers. The defendants bring the case here, and charge error in this: That the court had no jurisdiction of the subject-matter of the action; that the court refused to make written findings of fact and conclusions of law; that the court refused to permit the appellants to file a motion for a new trial.

The contention of the appellants upon the first assignment of error is that this is a suit for contribution, and hence equitable in its character; that the probate court has no equity jurisdiction except that which was expressly conferred by law; that it has also a limited jurisdiction; and that, with certain exceptions, of which this is not one, the probate courts have no powers except in common-law cases upon a money demand in which the aid of equity is required to retain the status of the parties and of the subjectmatter pending litigation. It is also contended by plaintiffs in error that actions at law and in chancery are constitutional branches of judicial procedure, and that the act of congress creating the government of this territory, and conferring the judicial power upon the supreme court and the district courts of the territory, recognized and maintained a clear distinction between common-law and chancery actions. It is by the act extending the jurisdiction of probate courts in civil and criminal cases, passed by the legislature of Oklahoma, which took effect December 25, 1890, and in article 15, § 1, thereof, provided that "probate courts * shall in civil cases have concurrent jurisdiction with the district courts in all civil cases in any sum not exceeding one thousand dollars, exclusive of costs," etc.; and it was by act of congress of March 3, 1891, as contained in the supplement to the Revised Statutes of the United States (2d Ed., vol. 1, p. 929), enacted as follows: "Provided that in addition to the jurisdiction granted to the probate courts and the judges thereof in Oklahoma Territory by legislative enactments, which enacıments are hereby ratified," etc. So that in all civil cases in which a sum of money is sought to be recovered not exceeding $1,000, exclusive of costs, the probate court has the same or concurrent jurisdiction as the dis

*

*

trict court. "Concurrent" is "having the same authority. Such and such courts have concurrent jurisdiction; that is, each has the same jurisdiction." Bouv. Law Dict. p. 311. "Concurrent jurisdiction is that of several different tribunals, each authorized to deal with the same subject-matter." Rap. & L. Law Dict. The probate court has therefore the same authority, and is authorized to deal with such a case in the same manner and to the same degree and with the same jurisdiction, as that of the district courts; and “civil cases” is undoubtedly used in the statute as opposed to "criminal cases." And civil actions, therefore, included any action in which a litigant may be entitled to a civil remedy; that is, to a remedy which is legal in its character, or to a remedy which is equitable in its character. The recovery sought here is for a sum of money less than $1,000. This case does not fall under one of the exceptions to the provision above cited, enlarging the jurisdiction of the probate court. The probate court has therefore jurisdiction to hear this case.

It is also contended by plaintiffs in error that actions at common law and in chancery are constitutional branches of judicial procedure; and that the acts of congress creating the government of this territory, and conferring judicial power upon the supreme court and the district courts, recognize and maintain a clear distinction between common-law and chancery actions; and that the code abolition of these actions will not prevail in federal courts. Upon this contention it is to be said that the only provision made upon the subject in the constitution of the United States is as follows: "The judicial power shall extend to all cases in law and equity arising under the constitution or laws of the United States, treaties made or which shall be made under their authority," etc. So that actions at law and in chancery are not constitutional branches of judicial procedure, since no provision is made concerning them in the constitution. The only provision relating to this matter contained in the organic act is that of section 9,-that "the supreme and district court shall possess chancery as well as common law jurisdiction;" and there is therefore no "clear distinction" preventing the operation of that portion of that provision of section 10 of article 2 of the Code of Civil Procedure which "abolishes the distinction between actions at law and suits in equity," which provides that "the forms of all such actions and suits heretofore existing are abolished, and in their places there shall be hereafter but one form of action, which shall be called a civil action." Neither is this a case which, as is contended, appeals to the federal powers of the court.

Error is again assigned in this: that the court refused to make written findings of fact and conclusions of law thereon, at plaintiff's request. It is provided by the