It was against the enactment of new laws which ignored the proceedings according to the course of the common law, and provided summary methods of determining legal rights, that the protecting shield of the Constitution was required. The true criterion is, does the act destroy or materially impair the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury? 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, and not the nature of the tribunal, nor the summary mode of proceeding therein, should decide the question. The cases cited as the basis of the opinion of the supreme court of Minnesota would find no support in this State under our Constitution. Underwood v. People 32 Mich. 1; Swart v. Kimball 43 Mich. 443; People v. Smith 9 Mich. 193; Tabor v. Cook 15 Mich. 322; Paul v. Detroit 32 Mich. 109; Woodbridge v. Detroit 8 Mich. 297, 300; Williams v. Detroit 2 Mich. 560; Campau v. Detroit 14 Mich. 276; People v. Brighton 20 Mich. 57; Chicago &c. R. R. Co. v. Sanford 23 Mich. 418; Mansfield &c. v. Clark 23 Mich. 519; G. R. &c. R. Co. v. Van Driele 24 Mich. 409; Horton v. Grand Haven 24 Mich. 465; McClary v. Hartwell 25 Mich. 139; Arnold v. Decatur 29 Mich. 77; Powers' Appeal 29 Mich. 504; Ryerson v. Brown 35 Mich. 333..

Neither do I see how, under section 10 of the act of 1881, such question can be submitted to a jury when requested by either party. There is no provision for a jury. In People v. Lawton, Judge of Probate 30 Mich. 386, this Court held that a law was not enforceable unless it furnished adequate means to secure the purposes for which it was enacted. The fault in that case was the failure to provide for a jury to try the charge in the probate court. Other cases have arisen under the act, and have been determined by the supreme court of Minnesota, but they are only interesting in this discussion as showing to what extent that court is called upon to supply defects in the law. In Re Barnard 30 Minn. 512, that court held that making a petition to the wrong county court did not go to the jurisdiction over the

subject-matter, or the debtor; that at the time appointed for hearing, the debtor might apply to have it removed to the proper county. The court very justly adds: "It must be admitted that there are difficulties in the way of this construction, but there are difficulties in the way of any other. *** But this is not the first occasion upon which this court has found it necessary to subject its imperfections in details of practice to rigorous construction." In Re Pauline Graeff 30 Minn. 358, it was held that an appeal lay to the supreme court from an order appointing a receiver, under chapter 86, sec. 8, subd. 6, which provides that the aggrieved party may appeal to the supreme court from a final order affecting a substantial right made in a special proceeding, or upon a summary appli cation in an action after judgment. In Re Pauline Graeff 30 Minn. 476, the court said: "The court is of opinion that the confession of judgment by an insolvent debtor in favor of one of his creditors justifies the filing of a petition by his other creditors, without reference to whether such creditor did or did not thereby in fact obtain a preference."

Perhaps in that state, where the functions of law and equity procedure are not kept distinct as here, but are all administered as civil actions, and where, by a constitutional amendment adopted in 1875, the district judges "severally have and exercise the powers of the court, under such limitations as shall be prescribed by law," the act in question may be considered constitutional, and its defects supplied by a liberal exercise of judicial power and rigorous construction. But our Constitution does not confer such power upon circuit judges, and our courts cannot supply defects in legislation.

I do not decide that there are not many questions which might be raised under this statute which it would be competent for a court to decide without the intervention of a jury, and I confine myself to those which are of common-law cognizance, as distinguished from those of an equitable nature. For instance, under section 2 of this act two facts, at least, must concur before the debtor can be deprived of his property: 1. He must owe three or more debts, two at least amounting in the aggregate to not less than $200; 2. He must

have done some act, or omitted to do some act, which this section prescribes shall entitle two or more creditors to file a petition. These acts are treated as a fraud upon the rights. of other creditors, and constitute the gist of the proceedings. Such issues, involving the elements of fraud both as to the debtor and creditor alleged to have been preferred, are such as are peculiarly appropriate for a jury, and the right to have such trial cannot be taken away by a summary proceeding of this kind. Whitley v. Gaylord 3 Jones (N. C. L.) 286; Purvis v. Robinson 4 Jones (N. C. L.) 96. There is a class of cases where it is competent to enter judgment upon motion without the intervention of a jury, such as upon appeal bonds, recognizances, and the like; but in these cases. the breach is known to the court as matter of record, and there can be no matter of fact in pais to be tried. In such cases no constitutional right is violated. Hiriart v. Ballon 9 Pet. 156; People v. Quigg 59 N. Y. 83; Chappee v. Thomas 5 Mich. 53; Lang v. People 14 Mich. 439.

From what has been said concerning the deprivation of the right of trial by jury, it is apparent that the act deprives parties of their property without due process of law. It does not provide that there shall be an adjudication upon the allegations of the petition; but simply enacts that if it shall appear to the court or judge that the debtor is insolvent, or has been giving or is about to give a preference, &c., he shall appoint a receiver. This he is authorized to do without a determination as to the fact duly pronounced by the court. The debtor is treated as an adjudicated bankrupt without adjudication. If we take Mr. Webster's definition, which is terse, and as accurate as any, viz.: "By the law of the land' is most clearly intended the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property under the protection of general rules which govern society. Everything which may pass under the form of enactment is not the law of the land,"-and apply it to this act, we find that

provision is made for inquiry and execution, but none for judgment. The method of inquiry is not according to the course of the common law. In no proper sense is a trial had at all. The proceeding is to be summary; the parties are to be heard, and such evidence received as may be proper. The court or judge does not ascertain judicially that the debtor has forfeited his privileges, or that his creditors have a superior title to his property, and therefore it shall be taken from him. With certain limitations and exceptions, not necessary to be noticed here, because the proceedings authorized by this statute do not fall within them, "the words, due process of law,' cannot mean less than a prosecution or suit according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property." This language must be taken with the important limitation that the forms and solemnities required must be such as were essentially in existence at the time of forming the constitution as a part of the ordinary means of administering justice. Per Bronson, J., in Taylor v. Porter 4 Hill 140.

It is claimed for this hearing that it is merely preliminary, and that no rights are determined or divested by it; and as supporting this position we are cited to the case of O'Neil v. Glover 5 Gray 144, where it was held that an adjudication under the insolvent law of Massachusetts did not conflict with this constitutional provision because it was merely preliminary in its nature, and did not finally determine the question of indebtedness, or deprive the debtor of his property or estate. This cannot be said of the act in question. Under it, can the hearing upon the petition be regarded as merely preliminary? What right has any one to wrest the property of the alleged debtor from him and convert it into money, and distribute it to other parties, without a final adjudication upon the issues submitted? If these inquiries are merely preliminary, when, in the later stage of the proceedings, are the issues tried and the questions determined whether or not the debtor has, by active means or passive inaction, committed a fraud upon his creditors which entitles an officer of the court to take possession and control of all his property,

except what is exempt, and administer his estate against his will? To the debtor and to the preferred creditor it is the principal question in the whole controversy, and the decision of it virtually ends the contest. The determination has the effect of a judgment at law upon which an execution issues, and lays hold of all the debtor's property. It is even more extensive; it has the effect of a decree in chancery upon a judgment creditor's bill, which draws into the hands of the court all the estate, legal and equitable, of the debtor. determination which lies at the foundation of such important consequences is not merely preliminary.

A

I am of opinion, for reasons above given, that the law in question is unconstitutional.

SHERWOOD, J., concurred.

COOLEY, C. J. I am not prepared to assent altogether to the views on the constitutional aspects of this case which are presented in the opinion of my brother Champlin, and as the result of the case does not depend upon them, I shall present my own views separately.

I have no doubt that if the Act could be enforced at all, some of the contested questions which might arise in any case would necessarily, at the option of the parties, be tried by jury, and it would be necessary to give the statute such a construction as would admit of such a trial. But the framers of the Act probably contemplated such a trial of some of such questions, though they have not expressly provided for it. The provision in the Act for a writ of ne exeat, at the discretion of the circuit judge or circuit court, is unquestionably unconstitutional. Under it a debtor who was unable or unwilling to give bail, might at the mere will of the judge be kept in jail indefinitely; and the authority thus to imprison him is plainly in conflict with the constitutional inhibition of imprisonment for debt. Const. Art. VI. § 33; Bailey v. Cadwell 51 Mich. 217. And much of the summary power which the Act undertakes to confer upon the circuit judge sitting at chambers, it must be quite impossible to give to any officer not at the time sitting as a court, when the Constitu