, 1872-03-28


cognovit. If one is denied as an en-
croachment upon Judicial power as con-
ferred e-cluavely upon Courts, then
must the other be likewise denied. Yet
no one has ever questioned the power
of Clerks to enter Judgment in vacation
upon cognovit.
As to authorities, it will be found that
the Courts Of all the States where the
New York Code is adopted, and several
where it is not, have uniformly sustain
ed the validity of such judgments and
the Circuit Courts of the United States,
under the act of Congress regulating
their proceedings, SO far as our know
ledge has gone, have allowed the entry
Of similar judgments. The author. 2
Abbott's Practice, p. 222. inferentially.
if not directly, sustains this view when
he says -
ga judgment by default, if complete
and absolute, is deemed final. But when
judgment is entered, leaving the
amount undetermined, under rule of
Court authorizing the plaintiff in actions
on contract to sign judgment against the
defendant when he omits to file an affi-
davit of defense, such Judgment is only
interlocutary, and becomes final when
the appropriate proceedings shall be had
for ascertaining the sum to be recover
ed"
This is the decision of Circuit Court
of the United States, Whitaker Us Bram-
son, 2 Paine, 2O9, and allows the irresist-
ible inference that in actions on con-
tract, where the amount is determined
in the judgment (as upon promissory
note, or upon contract for the payment
of a sum certain) the plaintiff may sign
judgment, and such judgment be deem
ed final.
In the case at Bar, under our Code,
the judgment is more formal, being en-
tered by sworn officer CT Court.
In California we know just such judg-
ments are entered in the Circuit Court
of the United States. aud this not by
virtue of express enactment of Congress
but solely because that Court is govern
ed in its proceedings in actions at Law,
by the Practice Act of that State.
If therefore such judgments may be
entered by the plaintiff for want of an
affidavit of merits. by virtue of a Rule OF
Court, how much more certainly can
they be legally entered. when authoriz-
ed by the Legislature, for that Body can
enact into binding law whole Codes OF
Rules of Court.
We have before us the recent revision
of the Practice Act by the Code Com
missioners of California, which contains
substantially the same provisions as our
own Code upon this subject. These pro-
visions have now stood the test of over
twenty years of adjudication in at least
one third the States and Territories of
the Union, and it would seem that such
uniform acquiescense and approval
ought at this day to invoke the applica-
ton of the principle, stare decisis.
Certainly their repugnance to funda-
mental law ought to be so manifest to
common legal perception, that no Nisi
Prius Court could fail to declare them
void, without violating an oath of office.
Lawyers could be well likened to a
ship at sea. without rudder or compass,
if the decision of a single Court is to be
taken as binding, or even guiding, au-
thority, as against those of dozen 9TH
er Courts of equal, not to say superior
weight.
We have not the means at hand of
verifying the fact, but the importance
of Just such enactments is so manifest.
that we doubt not an examination will
show, that large majority of American
States and Territories have adopted
them; not alone those which have enact
ed the New York Code, but also those
which adhere to the practice as known
at Common Law.
1t may be argued that the power of
our Territorial Assembly, under the Or
ganic Act, is more restricted than that
of the State Legislatures. But it will be
found that in every State Constitution
without exception. the judicial power is
vested, in correspondent terms, in GER
tain Courts.
We conclude, therefore, that this pow
er of entering judgment in vacation for
failure to answer, is in no proper sense
Judicial act, requiring the interposi-
ton of Court, but simply an entry of
judgment by consent of parties.
A Doc "SoLD. The following oc-
currence is described by the informant
as being one of the most amusing he
ever noticed:
A gentleman in New Haven recently
erected on Chapel street. near the col