for a trial by jury, and the party be forced to secure it by the circuitous route suggested. The question of the right of the debtor to be released from the payment of his debts. is one which the contesting party has the right to have tried by a jury. The creditor is called upon to release a portion of his claim against his debtor. The consideration therefor, as expressed in the act, is the benefit he receives from its provisions. These provisions require that the debtor shall not have given any preference contrary to them; that he shall not have fraudulently concealed or incumbered or disposed of any of his property, or fraudulently incurred any apparent indebtedness, or confessed any judgment with intent to cheat or defraud his creditors, etc. Under the insolvent laws of this State, which existed prior to the adoption of the present Constitution, and which authorized the discharge of the insolvent debtor by consent of two-thirds of his creditors, upon his surrendering his property, any creditor might oppose his discharge for reasons similar to those contained in this act, and a provision was made for trial of these issues by a jury. These questions of fraud, which are involved both in the initial and final proceedings, are proper to be submitted to a jury; and where fraud constitutes the main questions of contention, and is disconnected from those of an equitable nature, the common-law courts are the proper forums in which they should be tried.

In speaking of the right of trial by jury under a similar provision of the constitution of the state of Vermont, the supreme court of that state says: "The general rule of construction in reference to this provision of the constitution is, that any act which destroys or materially impairs the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury, is unconstitutional. * * * All the rights, whether then or thereafter arising, which would properly fall into those classes of rights to which by the course of the common law the trial by jury was secured, were intended to be embraced within this article. Hence it is not the time when the violated right first had its existence, nor whether the statute which gives rise to it was

adopted before or after the constitution, that we are to regard as the criterion of the extent of this provision of the constitution; but it is the nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law that must decide the question." Plimpton v. Town of Somerset 33 Vt. 288.

In Rhines v. Clark 51 Penn. St. 96, it was held that an act providing for ascertaining damages done by a mill-dam was unconstitutional, because the arbitrators therein provided for were not obliged to act, and because it did not secure a trial by jury.

A statute of Pennsylvania authorized the court of common pleas, upon petition, in cases where ground rents have been. or may be extinguished by payment or presumption of law. but no deed of extinguishment or release thereof had been executed, to make decree declaring the ground rent released and extinguished. The court was required to make order for giving notice, etc., and on due proof being made of the truth of the petition, to make the decree. Mr. Justice Sharswood, speaking of this law and the proceedings authorized by it, said that unless the proceeding could be upheld as being within the jurisdiction of a court of equity, it must be declared unconstitutional, and he considered it well settled (citing North Penn. Coal Co. v. Snowden 42 Penn. St. 488; Norris' Appeal 64 Penn. St. 275; Tillmes v. Marsh 67 Penn. St. 507) that "an act of assembly cannot vest in a tribunal like a court of chancery, acting without a jury, the power to determine upon the legal rights of parties, unless there exists some equitable ground of relief. * learned judge who delivered the opinion of the court below, appears to have thought that because 'there is nothing in the law which would prevent the court from sending every such case as this by a general rule to a jury,' it may therefore very well be questioned whether this act does in fact absolutely deprive the parties of a jury trial.' But as such a general rule, or the award of an issue in any particular case, would be entirely in the discretion of the court, it is clear that the parties have not secured to them their constitutional

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The

right of trial by jury. They would in effect hold it at the mere pleasure of the court." Haines' Appeal 73 Penn. St.

169.

Under the recent Bankrupt Act of the United States the right of trial by jury was secured upon these questions, and it was held that the process, pleadings and proceedings in such cases must be regarded as governed and controlled by the rules and regulations prescribed in the trials of civil actions at common law. Insurance Co. v. Comstock 16 Wal. 258. The debt and the act of bankruptcy taken together constitute the cause of action. The defense may controvert either of these or both. In re Ouimette 1 Sawy. 47. The objection that the petitioners are not creditors goes not only to their disability, but to the jurisdiction of the cause. In re Cornwall 9 Blatchf. 114. Under this act, although the law did not provide for notice to the preferred or attaching creditor yet it was held that such creditor had the right to appear and oppose the adjudications and that he might contest upon the merits and take advantage of any defense available to the debtor. In re Husted 5 Law Rep. 510; Clinton v. Mayo 12 N. B. R. 39; In re Walter S. Derby 8 N. B. R. 106; In re Elias G. Williams 14 N. B. R. 132; In re S. Mendleshon 3 Sawy. 343. Under Act No. 193 notice is required to be given, not only to the debtor but to the preferred creditor, and it follows that such creditor may avail himself of any defense open to the debtor. This disposes of the objection made at the argument, that the creditor cannot raise the question of the right of a trial by jury.

Attention has been called to the fact that Act No. 193 is almost a literal copy of chapter 148 of the general laws of the State of Minnesota passed in 1881, and that the supreme court of that state has pronounced the law constitutional there; and counsel urge that in adopting the law from that state the Legislature adopted the construction placed upon it by its courts. This rule of construction, sometimes recognized, is not always adopted, and never where such construction and the statute construed are in conflict with the fund

amental law. It would be a dangerous precedent for a court invested with the responsibility of deciding upon the constitutionality of a law, to follow blindly the decision of the courts of another state upon the question, although the opinions of such courts are deserving of great consideration.

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In Weston v. Loyhed 30 Minn. 221, the court held the act did not conflict with that provision of their constitution which declares that no person shall be deprived of his property without due process of law; the court saying that the proceedings were "to be instituted in the district court, and, from the beginning to the end are in and under the control of that court," which has inherent power, where no limitation is imposed, to so direct the procedure in all causes before it that the legal and constitutional rights of parties may be maintained. We may assume, for it is not questioned here, that no conclusive determination or adjudication in the allowance of debts by the receiver could be sustained upon constitutional grounds, whether the same was made ex parte, or upon notice and hearing; that such a proceeding would not be 'due process of law.' But we find nothing in the section indicating that it was intended that the action of the receiver, in this regard, should conclude any party interested in the proceeding. The act does not point out the method of procedure to be pursued by a party who may be unwilling to accept the decision of the receiver, but the administration of this law and the control of the procedure being committed to the court whose jurisdiction is general at law and in equity, it remains for that court, whenever the occasion shall require and the exercise of its power shall be invoked, to devise or direct such a course of procedure that the object of the law may be accomplished in at legal and valid distribution of the insolvent estate."

It needs no argument to demonstrate how inapt this reasoning is to the framework of government under which legisla tive and judicial power is exercised in this State. It concedes that a proceeding in accordance with the statute would not be "due process of law," but deficiencies in the legislative act are to be supplied by the court as occasions arise, and the court is "to devise and direct such a course of procedure that the

object of the law may be accomplished." Another provision of our Constitution stands in the way of adopting this decision as a correct exposition of the law. The judiciary are prohibited from exercising legislative functions.

In Wendell v. Lebon 30 Minn. 234, the same court held that section 2 of the act did not conflict with that provision of their constitution which provides that no person shall be deprived of his property without due process of law; nor with another provision of their constitution declaring that the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. Upon the latter point the court say: "We are not prepared to say that the issue as to whether an insolvent debtor had fraudulently concealed, or fraudulently incumbered or disposed of any of his property, with the intent to cheat and defraud his creditors, might not, under the provisions of section 10 of the act of 1881, be submitted to a jury. But, however that may be, a comparison of the old insolvent law and the Act of 1881 will show that, although having some resemblance to each other in some of their provisions, they are entirely different acts, both in their scope and effect, and that the issue to be submitted to a jury under section 8 of the old law is not only different in itself, but for an entirely different purpose, from that to be determined under section 10 of the present act. The Act of 1881 is an entirely new act, creating in effect a new tribunal, where proceedings are not at law,' or according to the course of the common law, but are special in their nature, and correspond more nearly to the proceedings in a court of equity. The constitutional provision invoked does not apply to proceedings of this kind. Ames v. L. T. & M. R. R. Co. 21 Minn. 241, 293; City of Minneapolis v. Wilkin 30 Minn. 140.”

The reason assigned by the court that the act is a new one, creating a new tribunal whose proceedings are not "at law" or according to the course of the common law, but special in their nature, corresponding more nearly to a court of equity, does not appear to me to be sufficient to uphold. the constitutionality of the law as against the objection made.