delivered the opinion of thg court. The defendant is the endorser of a note °* eig'ht hundred dollars subscribed by the late Desbois to his order. The note being: protested e> 1 “ for non payment, the Louisiana State bank., in whose possession it is moved for a judgment and ord r of seizure against the endorser^ con-formably to the sixth section of the act of March 13, 1818, but omitted giving or causing to be given the adverse party any notice of this pro,» ceeding. The endorser moved to have the judgment and order of seizure set aside, on the ground that this mode of proceeding was a violation of the 2nd section of the 4th article of our constitution, his motion being overruled, he appealed.
Thp summary manner of proceeding, by motion in cases like the present, has its origin in the Spanish law. The via executivaf or executive inode of proceeding, extended to all cases where the debtor was considered as having confessed judgment. One of them, indeed was the case of a private obligation in writing ; but before such written obligation could give to the creditor the right of proceeding to execution, he was bount|
Under our present practice, some of the rules observed in the Spanish tribunals have necessarily been abandoned as incompatible with our judiciary system, and others have been preserved and sometimes revived, from which state of things, some difficulty must inevitably now and then have arisen. In this instance the act, under which the present action has been instituted, seems to have been intended as a re-establish, ynent, in favor of the banks, of the Spanish. Summary mode of proceeding in cases of pro. jnissory notes, and other like obligations, but as jt does not require the subscriber to be called up
It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that this case be remanded with instructions to the judge not to proceed in it, until he shall have made the appellant a party defendant in this suit; and it is further ordered that the costs of this appeal be paid by the appellees.