with Notes of Reference (1803)
St. George Tucker
Of Proceedings upon Motions for Judgments in a Summary Way
JUDGMENTS upon proceedings in a summary way, that is, without the ordinary forms of law, in civil .cases, and without the solemnity of a jury, having been much countenanced by our legislature of late years, it may not be Improper to consider them in a distinct view. Our bill of rights appears not to be very favorable to these kinds of proceedings, the eleventh article declaring, “That in controversies respecting property, and in suits between man and man, the ancient trial by jury, is preferable to any other, and ought to be held sacred.” Upon this principle, it was formerly provided, that all issues, in fact, in the high court of chancery, should be tried by a jury;1 but this being found inconvenient the act was repealed, October, 1783, c. 20, which declared that the mode of trial in the high court of chancery should thenceforward be the same, as had been theretofore used and practiced in Virginia, under the former government; and the practice has ever since conformed thereto. Yet the chancellor may still, if he pleases, direct a trial by jury at the bar of his own court, or in any other court, according to the circumstances of the case, and convenience of the parties; but he may nevertheless decide all matters of fact himself, if he thinks proper so to do. But the cases in which we mean to speak of the trial by jury and the ordinary process of the common law as being dispensed with in Virginia, are not confined to chancery causes, in which last, long established practice concurring with the recognition of the powers of a court of chancery, in our state constitution, may be supposed to authorize a deviation from the rules of the common law.
The cases in which the trial by jury, and the ordinary proceedings of the common law are dispensed with, maybe divided into four heads.
1. Those cases in which, by reason of the smallness of the demand, it has been thought expedient to admit of a more summary recovery.
2. Where the defendant being a public officer is called upon to answer for some supposed delinquency.
3. Those cases where the delinquency of the defendant or the equity of the plaintiff’s demand, requires the most speedy aid to prevent him from suffering by the defendant’s default.
4. Where the defendant has already received the utmost indulgence of the law.
As to the first class….lst. by the act of 1710, c. 11, all demands not exceeding 20 s. sterling, or 200 lbs. of tobacco were recoverable, and finally determinable by any one justice of ths peace. The act of 1748, c. 4, limited the jurisdiction of a single magistrate to 25.s. currency, or 200 lbs. of tobacco, and provided that in such case no execution should be granted against the body of the defendant by such justice. The act of 1792, (Edi. 1794, c. 67), extended the jurisdiction of a single justice, to causes where the sum demanded did not exceed five dollars or 200 lbs. of tobacco, and the act of 1800, c. 38, has further extended it to causes amounting to ten dollars, or 400 lbs. of tobacco, with the like restriction, as to granting an execution against the body of the defendant.2 By the act of 1748, c. 4, it was provided that all demands where the debt, etc. did not amount to more than five pounds (except such as were under 25 s. or 200 lbs. of tobacco), might be prosecuted by petition to the county court, and decided without the solemnity of a jury. The act of 1794, c. 67, has increased this sum to twenty dollars, or 800 lbs. of tobacco. Actions of detinue and trover, where the thing demanded or the value thereof, shall not exceed 2O dollars, or 800 lbs. of tobacco, are to be prosecuted in the same manner. In these cases the clerk of the court draws the petition, stating how the debt, etc. became due and issues a summons to the sheriff, with a copy of the account, etc. which being executed on the defendant at least ten days before the return day, the court is to proceed to give judgment in a summary way. Penalties incurred under any act of assembly, amounting to more than five dollars, and not exceeding twenty dollars, are recoverable in the same manner, and execution may thereupon be awarded, as in other cases.
2dly. In certain cases where the defendant is a public officer, the law authorizes a recovery against him, and in some cases against his securities, on motion, the party having ten days previous notice. This happens, 1st. In the case of public collectors or other public debtors. The act of 1794, c. 64, authorizes judgment on motion to be rendered against any person receiving public money from the treasurer, for public use, and misapplying the same; or indebted to the commonwealth, by bond or other specialty, whether taken in the name of the governor, treasurer, or any other, acting in a public capacity, or on behalf of the commonwealth: or against any sheriff or collector of the public taxes, who shall fail to account for and pay the same into the treasury, in the manner, and at the time, prescribed by law, provided the defendant have ten days previous notice of such motion. The act of 1794, c. 102, gives to the overseers of the poor, the like remedy against collectors of the poor rates. 2ndly. Against sheriffs and coroners failing in their duty, in serving executions, either in behalf of the public, or any private person, the same summary proceeding is given by various acts:3 as also against their securities, in certain cases: nnd in all these eases the defendant is liable to damages for the non-performance of his duty, as well as for the principal debt. 3dly. Where judgment is rendered against any high sheriff, or the heirs, executors, or administrators, of any high sheriff for the default, or misconduct of his under sheriff, it shall be lawful for the court of the county, whereof he is sheriff, or the district court including such county, upon motion to them made, by such high sheriff, his heirs, executors, or administrators, to give judgment against such deputy, and his securities, their heirs, executors, or administrators, for the full amount of the fine, penalty, amercement, or judgment assessed, or rendered against such high sheriff, etc. provided the party have ten days previous notice of such motion 1793, c. 18. Edi. 1794, c. 80,101. The act of 1795, c. 16, binds the lands of deputy sheriffs and their securities to the high sheriff, and his securities; and the act of 1787, c. 10. Edi. 1794, c. 71. . 7, gives a similar recovery, by motion against an attorney, receiving money for hib client and failing to pay it. These summary proceedings being calculated to enforce the regular performance of their duty by public officers, who might otherwise be tempted to swerve from it, to the great obstruction of justice, and injury to the individual, are highly necessary. It may, however, be doubted, whether the extension of them to such a number of cases as we shall hereafter meet with will not contribute to sap the foundations of the trial by jury, and finally subvert it. But of this hereafter.
3dly. Summary convictions are allowed in such particular cases, as from the delinquency of the defendant, or the equity of the plaintiffs demand, may seem to require a speedy remedy, to prevent him from suffering by the default of the defendant.
1. Where the judgment has passed against a defendant and his appearance-bail, or against the sheriff where no bail, or insufficient bail has been returned by him, for the default of the defendant in not appearing according to the writ, in this case, as was elsewhere mentioned, the law permits the bail or the sheriff, his executors, or administrators, or any other person on behalf of his estate, to obtain an attachment against the estate of the defendant on motion, and upon execution and return thereof the court shall order so much of the estate seized as will be sufficient to satisfy the judgment and costs to be sold, and out of the money such judgment shall be satisfied,4 or the bail, his heirs, executors or administrators, who have paid the amount of the judgment, or any part thereof, may obtain judgment, in the court where the original judgment was issued, against the principal, his heirs, executors or administrators, on motion with ten days notice for the amount of the sum paid, and shall thereupon have execution.5
2. Where any debtor is removing out of his county privately, or absconds, or conceals himself, so that the ordinary process of law cannot be served upon him, any justice of the peace, upon complaint made by the creditor, may grant an attachment against his estate, (which may be levied upon the slaves, goods or chattels of the debtor, or served upon any person indebted to him) returnable to the next county or corporation court, and if the effects attached be notreplevied by giving bond with good security to the sheriff or by the defendants appearance and putting in bail, the plaintiff shall be entitled to a judgment for his whole debt, and may take execution thereupon; and the effects attached shall be sold towards satisfaction thereof in like manner as goods taken upon a writ offieri facias. And where the attachment is served upon any garnishee (or person having money or effects in his hands) he may be compelled to appear, and answer upon oath, what he is indebted to, or what effects he may have in his hands of the party absconding; and all goods and effects in his hands shall be liable to satisfy the judgment. And Where a debtor is actually moving, or absconding, on a Sunday, the attachment may be issued -and served on that day. But before granting any attachment, the justice granting the same must take care to take bond and security of the party for whom it is issued, in double the sum attached, payable to the defendant, for satisfying all costs which may be awarded him in case the plaintiff be cast in his suit; and also all damages which he shall recover against the plaintiff for suing out the attachment; which bond shall be returned to the court, and the party entitled to such costs or damages, may thereupon bring suit and recover; and every attachment issued without such bond, or where no bond shall be returned, is declared illegal and void.6
3. In all cases where judgment is obtained against any person, his heirs, executors, or administrators, as security for another in any note, bill, bond, or obligation, in any court of record within the commonwealth, and the amount of such judgment, or any part thereof shall have been paid by such security, etc. such security Etc. may obtain judgment, on motion with ten days notice against the principal debtor, his heirs, executors, or administrators for the lull amount of the sum paid, in any court where judgment shall have been rendered against such security etc. A similar remedy is given to one security against a co-security, where the principal shall be insolvent, or, in this last case, the court may apportion the debt between the securities.7
4. The like remedy is given to securities and co-securities, etc. who shall have satisfied any execution awarded or issued upon any bond, obligation, or recognizance, upon which, by the laws of the commonwealth execution can be awarded without judgment.8 These acts, however, contain some provisions calculated to prevent the security, by neglect or collusion with the obligee, from suffering judgment to pass, so as to distress the principal debtor. On the other hand, a security apprehending himself in danger of suffering by the insolvency, or departure, of his principal from the commonwealth, may give notice to the creditor to bring suit; which, unless he does within a reasonable time, he shall forfeit his right of action against the security. And securities, or their representatives may proceed in like manner with the executors or administrators of the creditor.
4thly. Judgments in a summary way may be rendered also in certain cases, where the defendant has already received the utmost indplgence of the law. 1. Where any distress is made for rent arrear, if the goods distrained be replevied, and a replevin bond taken for payment of the money at the end of three months; or if they be sold on three months credit, and bond be taken for the amount of the purchase money pursuant to the directions of the act concerning rents, and such bond be not discharged according to the condition .thereof, judgment may be thereon rendered against the obligors on motion with ten days notice.9 The like remedy is given where an execution has been issued and levied, and the goods seized have been restored upon a bond given for the forthcoming thereof at the day and place of sale; in this case the remedy is extended for and against the representatives of the obligee and obligors.10 The like remedy was formerly given in all cases where goods were taken in execution and sold on three months credit, or replevied by the defendant, on condition of paying the same within three months.11 But that remedy was altered by the act of 1787, c. 7, which introduced a new proceeding upon executions, and laid the foundation of some extraordinary innovations on the long established rules and maxims of the common law, substituting the oath of the party, for proof by witnesses, and the discretion of the minister of a court of justice, for the judgment of the court itself; and finally subjecting a party to process of execution against his body or estate upon proceedings in fais, without process, without notice, without proof, and withput judgment. To explain this, it will only be necessary to refer to the act of 1787, and the subsequent acts made on the subject of executions.
Inconveniences having arisen from the act permitting goods taken in execution to be replevied for three months, which was optional in the defendant, the general assembly, by the act of 1787, c. 7, abolished the right of replevying for three months, at the option of the defendant, but permitted the sheriff, where the goods could not be sold for three-fourths of their value, to replevy them for twelve months; and the bonds taken in pursuance of that act were to be delivered to the creditor or his attorney, or be returned to the office, and to have the force of judgments; and if not paid according to the condition, the creditor, his attorney, or assignee, might lodge the same with the clerk of the court, with an affidavit that the money, or part thereof, was still due, and thereupon the clerk might issue execution, upon which no security could be taken. These bonds were likewise made assignable, and when assigned, if the sheriff returned no goods, or not sufficient to pay the debt, the clerk was authorized to issue an execution against the assignor of the bond, for the amount of the debt therein mentioned, or such part as might appear to be still due.12 And by the act of 1794, c. 176, writs of capias adsatisfacienditm, or elegit, as well as writs of fieri facias, might be issued on replevy bonds. By the act of 1795, c. 2, the court, on motion by the assignee of a bond, who has assigned the same over, may give judgment against any prior assignor, his executors, etc. on ten days notice. And by the act of 1798, c. 3, notices of motions against sheriffs and other officers, engaged in the collection of the public revenue, were declared to be unnecessary: but this very extraordinary mode of proceeding was altered the succeeding year, 1799, c. 2. And by two subsequent acts (1800, c. 42, and 1801, c. 1) ten days notice must be given to sheriffs and collectors of the public revenue, in case of delinquency, as formerly.