§ 1371. The judgment may be enforced in the same manner, as if it had been rendered in an action, and is in the same manner subject to appeal. Amended Code, § 374. CHAPTER III. SUMMARY PROCEEDINGS FOR COLLECTING DEBTS IN CERTAIN CASES. SECTION 1372. Summary proceeding, in what cases. 1373. If original party deceased, personal representatives substituted. 1374. Complaint to be made. 1375. Notarial certificate to be annexed in certain cases. 1376. Copy complaint served personally, with notice. 1377. At time and place specified, judgment to be ordered, unless answer be presented. 1378. Judgment entered. 1379. If answer made, case to be put on calendar. 1380. If part of claim only be denied, the rest to be paid. 1381. Notwithstanding answer, plaintiff may have attachment. § 1372. The summary proceeding provided in this chapter may be taken for a sum of money actually due, upon a contract hereafter made, in the following cases: 1. Upon a bond conditioned for the payment of money only, against the obligor, and in favor of the obligee: 2. Upon a negotiable promissory note, against the maker, endorser, or guarantor, and in favor of the holder, who has received the same in good faith before maturity, for a valuable consideration, and without notice of any defence: 3. Upon a negotiable draft or bill of exchange, against the drawer, endorser, acceptor, or guarantor, and in favor of the holder, who has received the same in good faith, before maturity, for a valuable consideration, and without notice of any defence: 4. Upon a judgment of a sister state, against the judgment debtor, and in favor of the judgment credi tor: The provisions of this chapter have been framed upon the idea, that there is a certain class of obligations, admitting of a more summary remedy than the ordinary cases. They are those whose demands have either been liquidated by the parties, or settled by the decision of a judicial tribunal; where the defences possible to be made are few; where the securities are chiefly commercial, and credit requires that the remedy should be speedy. If the rights of the parties be sufficiently protected, and we think they are so by these provisions, it should seem, that a reasonable objection could hardly be made to them. There are judges and lawyers, we know, greatly prejudiced against summary proceedings of all kinds. They like the regular course, as it is called; but to our view, those cases to which summary proceedings are applied in this code, are as safely disposed of in this way, and with far greater dispatch, than it is possible to have in the ordinary mode of proceeding, though that were the most expeditious ever yet known. In every country, we believe, there is a well recognised distinction between ordinary and summary remedies, and to some minds the summary appears the most natural and rational. Among others, Mr. Bentham, a writer to whom the world is indebted for some of the profoundest disquisitions on the philosophy of law, which have ever seen the light, looks upon summary proceedings with much favor. His observations are so striking and original, that we insert a portion of them in this note, as better than any thing of our own. "What are natural systems, and what are technical ?" "It is among the characteristics of technical procedure, all over the world, to abound in rules and formalities. In process of time, as occasion presented itself, and irresistible necessity urged inquiry,-spite of all prejudices, a discovery was made, that, with little or no exception, these rules and formalities, instead of being necessary, were repugnant to the ends of justice that an option was to be made between the sacrifice of these rules and formalities, and the sacrifice of certain portions of substantive law, necessary to the existence of the state. Accordingly, certain portions of the field of judicature were marked out, and a course prescribed for the appointment of judges, with authority to proceed and inquire, to hear and determine, as they would do in the bosom of their respective families, paying no sort of regard to any of these rules and formalities. For distinctions sake, the courts thus constituted may be termed courts of natural procedure or judicature of natural procedure restored, or (if, in any odd nooks of the field of judicature, discovery should in any instance be made of any little spot, which happened to have escaped the fangs of the technical system,) natural procedure preserved. The character of the natural system of procedure, (it may already be perceived) is little more than negative. Health is the absence of disease. Liberty, in its original sense, is the absence of coertion. Natural procedure is the absence of those rules and formalities of which technical procedure is composed. But for verse, prose would not have had a name. But for technical, natural procedure would not have had, would not have needed one. In concurrent nomenclature, the distinction nearest to a coincidence with that between technical procedure and natural, as here explained, is that between regular and summary; but the coincidence is far short of being complete. Thus far, it is true, they agree, that, in comparison of all technical procedure, all natural is always summary. But technical procedure has its branches which are called summary, as well as its branches which are callel regular: for designating that which is not technical, the word summary has therefore been unfitted. Moreover, summary means short and wherever one course is shorter than another, it may, in comparison of that other, be termed summary. But, in a series of infinite length, the number of degrees is infinite, and in all that number there is no one that can have any exclusive pretension to the epithet of summary. The final cause of this article of jurisprudential nomenclature, is not difficult to divine. The use of regularity is recognised by every body: the term regular is eulogistic. Get people to believe that summary procedure is something opposite to regular procedure, you may prevail with them and accustom them to regard the more expeditious procedure with a jealous eye. In an underhand way, you may thus insinuate and get them to believe (what you durst not assert), that there is a sort of incompatibility between the superior despatch observable in the summary mode, and the superior regularity observable in the regular (that is in the technical, mode. The utility of dispatch,-its title to be regarded as one of the ends of justice,—is too plain to be denied: in the technical mode, as compared with the natural, the want of dispatch is also too plain to be denied. To reconcile men, as well as may be, to the repugnancy of the technical system in relation to this end of justice, you thus take the best chance that in so few words can be taken, for getting them to fancy, on the part of the natural course, a repugnancy to the direct and ultimate ends of justice: a conception, the exact reverse of which is the true one. In every country (so I imagine it would be found,) men of law, unable to find the shadow of an argument, have trusted to the power of this prejudice, preserving a prudent or rather necessary silence. Blackstone, in the fertile soil of England' has been fortunate enough to find another and still stronger prejudice, applicable to the same purpose. Summary procedure is a mode of procedure to be regarded with jealousy, and with such a degree of jealousy as shall prevent as much as possible the extension of it. With jealousy? Why? Because in summary procedure there is no jury. No jury?— and what then? Is the use of trial by jury to be regarded as an end, or only as a means? Taken altogether, are the ends of justice more completely fulfilled by regular procedure with its jury, than by summary procedure without a jury ?— another inquiry in which no lawyer ever ventured to engage, and from which Blackstone knew better than not to start. No where prejudice reigns, everything is to be lost by inquiry, nothing to be gained by prejudice the same business is done (when it is done) upon much easier terms. But, in the very word summary, may be seen an indication which, if it does not of itself afford, at least points out the path to, a complete demonstration of the incongruity of that mode to which it stands opposed. What is a summary mode? It is a mode, in and by which an efficient decision is obtained, with a less quantity of delay, expense and vexation, than that which is attached to the other mode, termed the regular. To the use, then, of the regular mode, a quantity of collateral inconvenience attaches, which does not attach upon he summary mode. From this single statement, admiting it to be true, follows a necessary consequence: viz: that unless under the summary there be some deficiency in respect of the security against misdecision, and that deficiency such that the mischief of it is of a magnitude to outweigh the advantage obtained by the defalcation from the mass of collateral inconvenience in the shape of delay, expense, and vexation,—the existence of the regular mode, be it what it will, is an enormous nuisance. Is the summary mode then attended with any such disadvantage? If so, in what particular respect ? What are the arrangements which, being necessary to the giving the completest security that can be given against misdecision, are to be found in the regular, and not to be found in the summary mode? The question is a conclusive one : no answer has ever been nor ever will be, given to it. Rationale of Judicial evidence, vol. 4, p. 8. § 1373. If in any of the cases mentioned in the last section, the obligee, holder, judgment creditor, or prevailing party be dead, the proceeding may be taken by his personal representatives. |