, 1872-03-28
gait department.
BRIEF.

is in derogation of Common Law.
1t is said this act is invalid because
the Judicial power of the Territory is
vested, by the Organic Act, in Supreme
Court, District Courts, Probate Courts
and Justices of the Peace, and therefore
the Assembly has no power to authorize
the entry of a Judgment by Clerk of
Court. That this is the exercise of Ju-
dicial function and belongs to a Court
alone. 1t may be argued that this pro-
ceeding is in violation of that provision
of the Federal Constitution, which says
that "no person shall be deprived of
life, liberty OF property without due pro-
cess of law" and that the Judgment
is not due process of law. not having
been rendered by Court.
But it has been uniformly held that
"due process of law" is not alone con-
fined to trial and Judgment by Court
but that where private private property,
for instance, is taken for public use, the
Legislature may provide any tribunal,
one of Commissioners even, to hear the
parties, assess the damages, seize the
property, and thus render final judg-
ment. Thus precisely the same end is
reached as would be after trial in Court
and seizure upon final process. Still
the person would be deprived of his pro-
perty by due process of law.
But this entry of judgement by default
is not strictly Judicial act. There is
no exercise of the function of adjudica-
tion-for there is no issue to be found =
no fact to be tried. 1t is at best but the
recording conclusion or consent reach
ed by the voluntary submission of the
parties. plaintiff and defendant, under
the provisions of law authorizing just
such conclusion to be reached.
Judgments upon cognouit, and even
upon default, for want of plea, can be
entered by the plaintiff, in vacation, even
in the English Courts; and upon cogao-
rit in most if not all the American; and
yet in such cases whether entered by
the plaintiff or clerk, it cannot be said
that a judicial function is exercised.
The Judgment, it is true, has all the
form and enough of the vitality of a
judgment rendered by Court. 1t is
equally lien upon real and personal
estate. and equally imports verify.
BY the Sd and 4th William, chapter
~, it is provided that judgment may be
signed by the plaintiff in vacation for
want of plea, and execution Immediately
issue; and i'll actions of assumpsit, case,
covenant. replevin, trover or trespass,
the plaintiff may at once, upon default
for want of plea, have writ of inqui-
ry issue to the Sheriff to ascertain the
amount of damages, and then sign judg-
ment and issue execution.
This subject is treated at length in
Chitty's General Practice, vol. 3 p. 672.
We may be permitted to quote the fol-
lowing paragraph:
"When the defendant has no defence,
either on the pIeadings or the laU, or
merIs, and he has no cross action to set
off. nor the means of Immediately pay
| ing the debt and costs, nor can obtain
time on the terms of his entering into a
rule to paw costs, nor can obtain time on
the terms of his entering into rule to
pay by instalmenrs, or giving cognouaf
or ,carrant Of attorney, then. to prevent a
greater increase of costs by pleading and
trial, he should omit pleading,
and thereupon, the plaintiff
having previously given notice to plead
and demand of plea when necessary.
and not having received plea in due
time. and which now in all cases must
be delivered, he signs judgment by nil
dicit, that is for defanlt of plea. At
forwards if the action be in debit, the
plaintiff may Immediately issue execu-
| ton. But if the action
be in assumpsit, [except on a bill of ex-
change or promissory note or check or
in covenant, or in case, replevin, trover
or trespass, the plaintiff must by ,crit OF
inquiry ascertain and fix by inquisi-
ton of q Sheriff's jury the amount
of the damages; Though where an action
of assumpsit is on such bill, note or chect,
then the amount of damages may by a
lorg established practice be referred to
the master; and upon the return of the
inquisition or master s assessment, final
Judgment is to be signed for the sums
thus differently ascertained and costs,
and erecution issues"
The same doctrine will be found treat
ed at length and fully sustained in Tidd's
Practice, chapter D.
Here then we discover the origin of
such enactments, to be in modern Com
mon Law practice, and in the acts of
Parliament.
judgments by default in vacation, for
want of an answer, have been uniformly
sustained, without question. in the
Courts of New York. and in those of all
the States which have adopted the code
system of that State.
The very able lawyers who framed
that code, no doubt based the power to
authorize the entry and enforcement of
such judgments upon the ground that
they were in all essentials, judgments
upon cognovit. That the defendant was
duly summoned, served with a copy of