
    Robert J. Sandford vs. A. Campbell & Co., use of John R. Chester.
    If the amount sued for be not ascertained by an instrument of writing, nor a sum certain, a jury is necessary to inquire of damages.
    C. sued S. in an action of debt on a bill single, a promissory note, and an open account. And a final judgment was rendered without a jury to inquire of damages : held, to be erroneous.
    Error from the circuit court of De Soto county ; Hon. James M. Howrey, judge.
    This was an action of debt brought by Erastus T. Collins and Andrew Campbell, partners, under the name and style of A. Campbell, & Co., for the use of John R. Chester, against Robert J. Sandford, for $900.81|, founded on two bills single, the one for $811.99, and the other for $53.80 ; one promissory note for $25.62!, and an °Pen account for goods sold amounting to $9.40.
    On the first bill single, was the following indorsement, to wit: “ $230, of the $560, is Hernando money, payable in New Orleans, which, if it cannot be used at par, Mr. Sandford is to redeem with par funds; also, $100, West Railroad bill, is to be redeemed if it is not passed at par.” The defendant failed to appear and plead, and judgment by default was rendered against him for “380.12|, the balance of the debt in the declaration mentioned, and $58.27 damages for the detention of the same.” The defendant brought the case to this court by writ of error.
    
      D. Shelton, for plaintiff in error.
    
      First. The judgment instead of being final should have been interlocutory with a writ of inquiry.
    1. An account for goods, wares and merchandise, constituted a part of the demand sued on, and was the subject of one count in the declaration. Our statute enacts that where the sum due does not appear by any instrument of writing, if the defendant do not plead, &c., an interlocutory judgment may be taken, on which a writ of inquiry shall be awarded, &c. &c. H. & H. 616.
    2. An action on an account for goods, wares and merchandise is not for a sum certain on which, at common law, judgment final might be recovered.
    In debt upon a bond or promissory note for the payment of money, by the default, the defendant admits the promise in writing to pay the money as alleged. So in debt for so much money loaned, the defendant admits the loan of the amount of money alleged in the declaration, and since money was not to be valued by a jury, a computation by figures is all that is necessary to ascertain the amount due; so too, in an action for goods, wares, and merchandise, by the default, the defendant admits something to be due for goods, wares, and merchandise, but the amount and value thereof is not admitted, but is wholly uncertain, and can be ascertained only by proof, that must be made before a jury. The true rule is, that when the matter of inquiry depends exclusively upon figures, it may be computed by the clerk, and not otherwise; therefore when upon the inquiry, the defendant may admit the contract as stated in the declaration, and yet give evidence to reduce the verdict, a jury must be called. ' 4 T. R. 275, 276; Ibid. 493; 8 T. R. 648; 2 Saund. R. 107 a, n. b.; Tidd’s Prac. 514, 515; 1 Ch. R. 619,620, b.
    3. The interest could not be ascertained in this case without a jury, because upon the account a.jury might, and could properly have refused to allow interest by way of damages. In such a case the clerk cannot compute the interest, and a jury must find it by way of damages. 8 T. R. 395.
    
      Second. The sum. of $380.12, being the pretended balance of the debt for which judgment was rendered, is not the true balance ; unless the Hernando money, mentioned in the credit, was estimated at less than specie, it should be $340.82.
    Without a jury no such discount could be made, because it must be ascertained upon proof of the value of the money. 1 Ch. Rep. 619, 620, b.; 4 T. R. 493.
    
      Van Winkle and Potter, for defendants in error.
    It is assigned for error that the judgment was final, when it should have been a judgment with an inquiry of damages.
    1. This was not error. This court has decided that a judgment by default final on an assessment of damages by the clerk, is “ a judgment after inquiry of damages,” within the meaning of the 91st sec. of the circuit court law. Rev. Code, p. 124; H. & H. p. 591, sect. 11 ; Gridley v. Briggs, Lacoste & Co. 2 How. 833. That section declares such a judgment shall not be reversed for any matter which would not be cause to reverse a judgment upon the verdict of a jury. If then the legal effect of this judgment is the same as if it had been rendered upon a verdict, can it be objected that a jury did not pass upon this account for $9.401 The statute of 4 Ann. c. 16, sect. 2, is like our statute, and the English courts hold that a want of inquiry of damages is aided by their statute. 1 Tidd’s Prac. 583; Mallory v. Jennings, 2 Stra. 878; Longman v. Fenn, 1 H. Blackstone, 543, n. a.
    Another statute provides for an assessment of damages by the clerk on any judgment by default “in actions of debt, for a sum certain.” How. & H. p. 616, sect. 9. This action is for a sum certain; the count for goods sold, is upon the contract to pay the very sum for the goods; “ debt is upon the contract or sale, but indebitatus assumpsit is upon the promise;” the count is, in effect, for the very sum agreed to be paid for the goods, and the default admits the agreement. See cases cited in argument by Gibbs, in Emery v. Fell, 2 Burn. & East, 28. “In debt the judgment (by default) is always final quoad the debt.” 1 Tidd’s Prac. 573; 2 Arch. Prac. 33, et seq. ; Fenton v. Garlich, 6 Johns. 287.
    2. By his default, Sandford admitted that the amount of the three notes sued on was still due and unpaid. That amount was $890.81, with interest, and yet the judgment was for only $438. 39i. If Campbell & Co. are content with a judgment for less than one half of what Sandford thus admitted to be due, can Sandford complain? Wardv. Haight, 3 Johns. Ca. 80.
    The cases cited for plaintiff in error do not reach the question before the court; they merely show when a court will direct a reference and when direct an inquiry by a jury to ascertain the amount due on a default; they do not show that an assessment like this would be error. On the contrary, the English rule is, that the court itself may in all cases assess the damages on a default. 2. Saund. Rep. 107, n. 2; 2. Arch. Prac. 32; Collurn v. Barker, 3 Johns. 153.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt founded upon a bill single, a promissory note, and an open account, for goods sold. There was a judgment by default, and a final judgment rendered without a jury to inquire of damages. This raises the sole question in the cause.

It was no doubt competent to the court to enter up a final judgment, without the intervention of a jury, upon the bill single, and promissory note. This is authorized by the statute. H. & H. 616, sec. 9. But where the amount is not ascertained by an instrument of writing, nor is a sum certain, there a jury is necessary. This produces a reversal of the judgment below.

Judgment reversed.  