Deloach v. Worke, 10 N.C. 36, 3 Hawks 36 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 36, 3 Hawks 36

Deloach v. Worke.

V Administrator of Dyson.

It was the design of the áct of 1807, ch. 721, to allow a Plaintiff interest on the principal sum recovered from the time judgment is ren. dered ; and the Jury must distinguish between principal and inter- - cst where the whole sum is assessed in damages; but where the principal and interest are discriminated on the record, or it can be collected from an inspection of it what the principal is, interest shall be calculated on that.

Where, upon the plea of nul tiel record, it appears that no formal judgment was entered upon the record, the Court must overlook the objection, as otherwise, owing to the looseness of practice, the proceedings of Courts, for years back, would be overturned.

Scire Facias to revive a judgment.

The Defendant was sued in Iredell County Court, in an action of debt founded in the obligation of his intestate for the payment of $170, made in 1812, and pleaded thereto the general issue, and retainer to the amount of $873 66J cents, and confessed assets in hand to the amount of $1789 20s cents, and no assets beyond.

The Jury found, that the administrator detained from the Plaintiff the sum of one hundred and ninety dollars, thirty two cents; that the Defendant was entitled to a retainer, of $S76 66| cents, exclusive of commissions, and that there were assets beyond sufficient to pay the judgment and costs.

D11 the judgment, a scire facias issued, to which the Defendant pleaded nul tiel record, payment and set off 5 it was found by a Jury that “there is no payment or set off, that the judgment is $190 32, and damages by way of interest to $60 50,” and the Court adjudged that there was such a record. The Defendant appealed to the Superior Court of the county; and a J ury there found, against the Defendant' on his pleas of payment and set off, and the Court adjudged that there was such record, and gave judgment for $X90 32 principal, and, for the further sum of 084 62 interest, up to the present time ; whereupon Defendant appealed to this Court. The record did not shew that any formal judgment had ever been entered upon the verdict against the Defendant, in the first suit.

Ruffin for the Plaintiff.

If the judgment which has been given be erroneous, still the Plaintiff is entitled to some judgment. It may be admitted, that the Court below could not on a scire facias to revive, give a judgment of recovery for more money in numero than was mentioned in the first judgment. The judgment perhaps ought to have been for 0190 S2, (the costs having been paid,) with interest on 0170 from the time of rendering the first judgment in the County Court: if this be so, the consequence will be, that the judgment below will be reversed, and this Court, proceeding to do what the Superior Court should have done, will give the judgment mentioned as proper, provided the Plaintiff be entitled upon the record to have interest after the rendering of the judgment sought to be revived.

He should have interest, for'the judgment constituted a debt, which the Defendant has delayed paying, and Plaintiff is entitled to compensation for this delay. He might have recovered it at coinman law by action of debt, instead of bringing a scire facias: — The act of 1807 (£A. 721 New Rev.') directs the judgment to be given for the principal debt, and damages for the interest before that time accrued and assessed by the Jury, and expressly declares that the principal should carry interest after judgment until the day of payment: it is therefore, to a certain extent, a prospective judgment, and it is left to the Sheriff to calculate this subsequent interest. Can it be believed that the Legislature would confide this calculation to a Sheriff', and yet that a court in a process to revive would not be empowered to make it ? It is true, the judgment on scire facias is not quod recuperet, but quod Juibeat executionem; execution of wiiat ? of the judgment' formerly pronounced, i. e. for principal, and damages; ail(j ajgo interest on the principal from the day of rendering the first judgment, until it is paid. The question, therefore, to be answered, is, what was that judgment? The record shews it to have been a suit on a contract made since 1807j and of course, included within the provisions of the law of 1807, declaring that interest shall run after the judgment, if, to tiiis, it be objected that that this case comes not within the act of 1807, the Court could not give judgment under that act, because “the Jury did not by their verdict distinguish principal from interest; we answer, that a sound construction of the act will shew, that this provision in it, is not an indispensable pre-requisite to a judgment, that interest shall continue to run: the purpose of the Legislature was, that principal should bear interest; this is applied to all contracts made after 1807, and might lead to some confusion in many actions on contracts, if it did not appear upon the reeord what was principal, and what interest. This was the sole purpose of the provision, and it does not apply in a case where it already appears on the record, by the admission of parties, or otherwise: it cannot be necessary in such case, that a Jury should find principal and interest in his verbis: here the facts do appear from the record, and from it, the Court can ascertain with absolute legal certainty, the point, which it is said a Jury should nevertheless find; but, in truth, the Jury did, in this case, in effect find it. To insist upon the finding of a Jury, in all cases is, ¡Kerens in litera.

The act of 1808, (_Gh. 746, JVfew Mev.) confirms this view of the subject. By the act of 1777, judgment by default, is; actions of debt, shall be final, unless when damages are suggested on the roll, because the certainty of the debt appears of record, and the party or officer of the Court calculates the interest; this certainty, necessarily exists in every case in which debt lies, and in every case of debt only. The act of 1807, gives interest in all -aciions brouglit for money due by contract thereafter made, except penal bonds; this embraced assumpsit on open accounts, and in all its other forms, and some means were necessary to ascertain what part of the damages was for the principal debt, and what for interest; they do not a pe-pear, and are not confessed, by Defendant on a judgment, by default: but in many actions on contract, that certainty as to principal, does appear as much as in actions of debt. For example, an action brought on a written promise to pay money, and in such cases it seemed proper that a Court should give a judgment final, upon the calculation of its officer, without a writ of enquiry: hence, the act of 1808 extends the provisions of that of 1777, as to debt, to ail actions brought on a single bond, a covenant for payment of money, a bill of exchange, pmnissory note, or signed account; and as the Court could, in all these cases, seethe truth from the record, so, in the same manner, on suit brought, it can ascertain the sum on w liich interest is to run after the judgment; and hence, the act of 1808, extends also, the provisions of the act of 1807, with respect to interest on judgments, to cases of default.

But it may be said, this last act extends only to cases of default, and that when Defendant “pleads to issue,” the Jury must-ascertain the interest, and it will hence be inferred, that in no case of issue can the Court give judg-. ment for the recovery of subsequent interest. . This is to insist again on the letter, and such construction would forbid a judgment by confession for the debt, with interest thereon, until it be paid. Pleading to issue, mentioned in the act, must be considered with reference to the subject; it is an issue as to the amount of principal due. Such are the pleas of payment or set off. — Without them, the sum duo. as principal, is as certain from the pleadings, as upon a default, or the finding of a Jury; therefore, interest shall be given.

Taylor, Chief-Justice.

The evident design of the ac* c' T^l, was, to allow the Plaintiff interest on the. principal sum recovered in a judgment, from the time of its rendition $ and the direction to the Jury to distinguish, between the principal and interest, was intended to provide for those cases in which the whole sum is assessed in damages, so as to enable the Clerk or the Sheriff, to compute the interest on the principal sum. But where the principal and interest are discriminated on the record, or it can be collected from an inspection of it, what the principal sum was, it it equally within the spirit of the act, that interest should be calculated on that; and as the note is here spread on the record, and the principal of it corresponds precisely with the sum demanded in the writ, it is plain that the verdict was formed on a calculation of the principal and interest, and a deduction of the payment endorsed. There can bo no difficulty in reforming the judgment of the Court according to the act. The objection that no formal judgment was entered in the County Court, cannot prevail without reversing, perhaps, the greater part of the proceedings which have been had for years past. The judgment must be considered as entered according to the opinion which this Court has constantly entertained. — (1 L. Rep. 95, 378.)

Hall, Judge.

It is apparent, that the judgment which this scie fada is brought to revive, was founded upon a debt due by contract, because it was obtained against an administrator, and if so, that it bears interest from its rendition under the act of 1807, (New Rev. ch. 721,) hut either no interest, was given by the Jury, upon the debt due, or if it was, it was added to the principal, and both together made the sum of g190 32. The justice .of the case therefore is, that the Plaintiff should have judgment for S 190 32, with interest (under the act) upon the sum of g 170, part thereof which appears to be -the principal of the sum originally due.

1 think we must say- there is such a record, for although it is apparent that it is very defective for the vrant of entering1 a formal judgment upon the verdict, yet, considering the situation of many of tiie records of the Courts of this State, were we to give a different judgment, it would lead to the greatest injustice and hardship. From these considerations, I think judgment should be given for the Plaintiff, with interest on the sum of $ 170 only until paid.

Judge Henderson concurred.