, 1872-03-28


no more the exercise of judicial func-
ton than the other. The defendant,
however, bv this silence, waived no
right to move 10 set aside for irregulari-
ty; no right to move to open the judg-
ment and for leave to answer. upon a
show of merits; nor vas he precluded
from obtaining a stay of execution at
any time upon er-parts application. So
no hardship was entailed by his own
act, or rather want of act in failing or
declining to answer.
By the old Common Law practice, as
it was introduced by the American Col
onists, no copy of the declaration was
served, but the defendant was arrested
upon capias ad respondendum, and was
required to plead on the return day of
of the writ. Then too, under the COM
mon counts in the then declaration, the
plaintiff could recover for almost any
liability arising on contract. Hence the
defendant was not advised what particu-
lar liability he was called upon to meet,
and it was to remedy this uncertainty
that the Code was enacted. and the mod
ern English Rules adopted.
It is, to say the least of it, remarkable
that the power Of the Legislature to au-
thorize the entry of judgments during
vacation, by the Clerk, has never been
questioned by the very able Bar of New
Yof,l, nor by the Courts of that State.
We can find no case involving the ques-
ton in the New York Reports.
Whenever the question has been rails
ed in other States, under like statutes,
the power to confer this Judicial power
(if it is one) upon Clerks of Courts has
been uniformly sustained. with the sin
gle exception of the Supreme Court of
Illinois, in Hall VS.. Marks, 81 Ill. 358,
which is cited to the contrary. 1t Is to
the contrary, and a similar statute to
our own is held to be unconstitutional,
because judicial power is vested by the
constitution in certain Courts. But the
case certainly was not well considered;
it surely was not we'll argued, and but
few authorities were reviewed. The re-
suit may have been controlled by the
prohibitory clause in the Illinois consti-
tuition, and was no doubt Influenced by
the fact that the old Common Law prac-
tice is there adhered to.
Our Organic Act vests the Judicial
power of the Territory in Supreme
Court, District Courts Probate Courts,
and Justices of the Peace. 1t provides
for the appointment Of Clerks of Courts,
confers Chancery as we'll as Common
Law jurisdiction, and makes Clerks,
Registers in Chancery.
Under Chancery rules Clerks have We
ry distinct and considerable Judicial
power. No bill can be filed, no order
can be entered as of course, without
leave first had and obtained from the
Clerk, and his fat must verify the act,
be it judicial or ministerial.
To empower the Clerk to enter judg-
ment by default in vacation is therefore
not step outside, but step further in
the same path. 1t is really judgment
upon cognovit, silence, confession. sub
mission to the law upon just claim;
and there is no good reason why the
plaintiff should not have speedy judg-
ment, when there if not only no attempt
at defence, but when in fact there is no
defence; while there are many reasons
why he should have it. 1t saves time
and expense at the term, by clearing the
docket of merely formal suits. It estab-
fishes confidence in the efficacy of judi
cial proceedings. 1t encourages prompt
itude in business relations. 1t furthers
justice and rebukes neglect. 1t should
be sustained, If possible.
But furthermore, it is q function
which may properly be conferred upon
Clerk at Lao, who has the same pow
er already by the Organic Act in Chan
Gerry. 1t takes no power from the Court,
for it is a over in fact exercised in the
Court by its own officer, entered upon
its record of judgments.
All the essential facts in order to
cognovit, are contained in the summons.
1t recites the precise nature of the plain
tiff S demand. It says to the defendant,
you are summoned to answer the COM
plant filed herein within twenty days,
or a judgment will be entered against
you upon certain promissory note for
800. Yoa have twenty days to show
you are not liable. If you do not show
it, you admit the liability-you confess
the judgment-your cognovit is accept
ed.
The defendant by his silence says
eyes, your claim is just, I admit the
amount to be due, take your Judgment.
In the case at Bar, if the defendant
has no defense he will not be allowed to
answer and if the Court holds the judg-
ment entered in vacation a nullity, it
will at once order judgment nil dicit. If
he has defense. and was prevented by
ony mod reason from answering in tine,