delivered the opinion of the court.

This was a proceeding in the court below, under the statute which gives a summary mode of recovery in behalf of a surety, who has paid money for his principal.

The act in question has long since received a judicial construction in the old supreme court of the state, and the practice under it, as far as my experience went, was conformable thereto. See *394Walker’s Reports, 495. Brown v. Oldham, Revised Code, 142, sec. 160.

In the present case, the following facts appear by the record sent up, that Thomas B. Woodward moved the circuit court for judgment against Jesse May and wife, administrators of Smith Butler, deceased, for the sum of $1,285, and interest thereon from the time paid “by plaintiff in this motion as security of said Butler to Hardaway & Boykin, in pursuance of the judgment of the circuit court of Yazoo county, obtained at the February special term thereof, in 1838,” that an issue was joined between the parties, and by their attornies the cause was submitted to a jury “to try the issue,” who found that the said Woodward was security for the said Smith Butler, and that as such he paid the money mentioned in said motion, to wit, $1,285 80, upon which verdict a judgment was rendered in favor of the plaintiff, which judgment was afterwards at the same term arrested and set aside, as appears by the bill of exceptions in the case, on the ground that the act of assembly, giving this summary proceeding, is unconstitutional, and the case of Smith v. Smith, in 1 Howard’s Rep. p. 102, was relied on.

This writ of error is sued out, and the error assigned is that the court below arrested the judgment.

There is no difficulty in my mind in reversing the judgment of the court below, and directing judgment to be rendered in favor of the plaintiff in the motion, inasmuch as it appears that the parties appeared voluntarily in court, made up an issue and tried it by jury, who rendered their verdict, and it appearing also, that the judge before whom the cause was tried, was satisfied with the verdict and arrested the judgment merely on the ground of the decision in 1 Howard, 102.

Being entirely satisfied in my own mind, that this mode of proceeding by a surety against his principal, is not unconstitutional, and that the question has heretofore been settled by a competent tribunal, 1 am not disposed to go again into the discussion of the question; especially, as in this case, there was a voluntary appearance of the defendant, and a trial by jury.

I will however remark, as in the case of Brown v. Oldham, that *395the court should be exceedingly guarded in rendering judgment on such motions; that the facts necessary to show that the plaintiff in the motion is a mere surety, should appear on the record and proceedings of a court of competent jurisdiction, that the judgment against the surety should likewise appear, that the evidence of the payment of the money by the surety must be such as to leave no doubt of the fact, that I am almost inclined to think that nothing less than the receipt and return of an officer of court shewing the payment to have been made by the surety, should be received.

There is a class of cases where this summary remedy would not be allowed, at least without a trial by jury, and that is, where it does not appear of record, that the plaintiff is surety. For instance, in case of promissory notes, made jointly by A and B, where B is in reality the surety, but appears as principal on the note.

I will further remark, that there are many cases where the courts render judgments against sureties without suit or trial by jury, as on forthcoming bonds and appeal bonds, and the constitutional right to do so, is every where admitted.

The judgment must be reversed, and judgment be rendered for the plaintiff, according to the verdict of the jury.