By the Court,
PAINE, J.It is not denied that this complaint is sufficient to show a cause of action under sections 35, 36, and 37, cbap. 22, General Laws of 1859. But it is claimed in support of tbe demurrer, that tbe act itself is unconstitutional. A portion of tbe argument is based upon tbe provisions of sec. 38, which require tbe defendant, as a condition to tbe right of defending against tbe tax deed on account of certain irregularities, to pay into court certain sums therein specified, for tbe benefit of tbe plaintiff. We do not see bow this question can be raised upon this demurrer. For if that requirement were conceded to be invalid, it would not destroy tbe entire law. Tbe only effect would be that tbe specified defenses might be interposed without complying with tbe conditions. Tbe provision in question certainly does not constitute such an essential feature of the law, that tbe whole must fall unless effect can be given to that.
Tbe only other ground for bolding the act unconstitutional was, that tbe action is in effect a legal action, and that it is incompetent for tbe legislature to change a legal into an equitable cause of action, and thus deprive the party of bis constitutional right to a jury trial. But this may be conceded, and we still do not see how this law is obnoxious to tbe objection. Section 42 expressly secures to either party who demands it, a jury trial upon any issue of fact. There certainly can be no question here, then, about a party’s being deprived of this right. And we suppose that it is not denied that it is competent for tbe legislature to enlarge or abridge remedies existing, or create new ones, subject to such restrictions as tbe constitution imposes. We discover no valid objection to the law in that respect.
Tbe order sustaining tbe demurrer is overruled, with costs, and tbe cause remanded for further proceedings.