
    
      Miller and Leckie, for the use of Assignees, vs. Richard V. Jones.
    
    1. Where a defendant died during the term of the court, before any judgment regularly entered up, but after the damages had been assessed on a reference to the Clerk, and the judgment was entered up on the last day of the term — such judgment was held to be regular, and that there was no necessity of sci. fa. to the executors or administrators.
    2. By the assessment of the Clerk, the plaintiff’s chose in action was no longer merely under the interlocutory judgment, but became res judicata, or a debt of record ascertained and adjudged. The 11th rule oí court merely postponed the formula of entering it up as the final judgment.
    3. The Act of 1746 (7 Stat. 193) relates only to judgments still interlocu-
    tory, and has no relation to cases where the amount has been ascertained by a judicial process under the Act of 1809. (7 Stat. 308.)
    4. The 11th rule of court is in conformity to the common law rule.
    5. The Act of 1809 puts the assessment of debt and interest by the Clerk in the place of a verdict. The Act is remedial; and the substitution of the assessment must be identical, in effect, with verdicts.
    6. The death of the defendant after the assessment, could only abate, or rather suspend, further additional proceedings growing out of the judgment —not the judgment itself, which was res judicata.
    
    
      Before Evans, J. Charleston, Spring Term, 1843.
    In this case, an action had been brought against Jones by the plaintiffs. The declaration was filed, and an order for judgment by default was made on the 12th August, 1841. The case was put on the inquiry docket, and was ordered to be referred to the Clerk, to assess the damages, on the 8th January, 1842. Damages were assessed the same day. During the term, and before any judgment was regularly entered up, the defendant, Jones, died. The judgment was entered up on the last day of the term, viz: 29th January, 1842.
    At this term, Mr. Northrop made a motion to set aside the judgment, on the ground that it could not be entered up without sci. fa. to the executors or administrators. As nothing more was to be done, the debt being ascertained, the presiding Judge thought no sci. fa. was necessary, and refused the motion. The notice of appeal is annexed.
    
      1. Because, at common law, the case would have abated on the death of the defendant, before final judgment, which could not have been entered up until the rising of the court.
    2. Because, according to the provisions of the Act of 1746, which prevents the abatement of the action, the plaintiff should have taken out a writ of scire facias against the administrator of the defendant, to shew cause why the damages assessed should not be recovered by the plaintiffs.
    3. Because the order of reference to the Clerk is only an authority to the Clerk to enter up the judgment on the rising of the court, but is not a judgment of the court; and that the defendant dying after the interlocutory judgment, and before final judgment, the subsequent proceedings should have been according to the A. A. 1746.
    4. Because the judgment being entered up against the deceased intestate, the administrator; in the distribution of the assets of the estate, would have to class the debt among other judgments, or not consider it at all; whereas, the character and degree of the debts of a deceased person are fixed and determined at his death; and at that period, the debt not having been reduced to judgment, could not take rank as such, which would be contradictory and anomalous.
    5. Because the decision of his Honor was contrary to the rules and practice of the court. Respectfully submitted.
    
      Northrop, for the motion.
    By the common law, personal actions abated on the death of either party at any stage of the proceedings. The maxim was “ actio personalis moritur cum, persona,” and it followed from the nature of judicial proceedings which were ore tenus; cited Stat. of Car. 2, c. 8. Pier-sail vs. Smyth, 1 Keble, 477. In this case the court disagreed. The same case-is found in Siderfin, p. 151, and is cited in the index to Keble, (“ By death after verdict stayeth judgment, or not, at discretion”) — this was A. D. 1663, or 17 Car. 2. Cited Hobart Rep. 129 — “after the verdict, the court was informed that one of the women was dead, whereupon judgment was stayed and in this case, Styles’ Rep. 299, are cited, where “an action was brought against four defendants, and before a verdict one of them died, and a verdict was found against the defendants. Twysden prayed the plaintiff might have judgment against the other three. Roll, C. J., “if you will relinquish your damages as to the person dead, you may have judgment against the resit.” In Cro. Car. 509, it Was held by all the court that the death of plaintiff or defendant after verdict by nisi prius, and before the day in banco, shall abate the writ or bill.
    To settle these uncertainties, and to avoid unnecessary suits and delays, it was enacted by the 17 Car. 2, c. 8, “ that the death of either party between the verdict and the judgment, shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict.” By the common law, if the plaintiff dies after the day in banco judgment shall be entered, for no continuances are afterwards entered. 1 Sid. 462. At common law, the death of a sole plaintiff or defendant, before final judgment, would have abated the suit, but as the judgment relates to the first day of the term, if the party be alive after that day, it may be entered up after his death; Tidd. 982. This is consistent with the 17 Car. 2, which provides for the death between verdict and judgment; and in applying this principle to our practice, this distinction must be attended to — that the days in banco, which were all considered as the first day of term, were after • the verdict in the term preceding, as at the assizes when the final judgments were entered up, thus corresponding with our last day of term, before which judgments shall not be entered up by the ] 1th rule of court. In Comyn’s Dig. (Title Abatement H,) “if there be a special verdict in vacation, and plaintiff die in term, judgment (by consent) may be entered as of the first day of the present term.”
    The Stat. of 17 Car. is strictly confined to verdicts, and does not extend to cases where either party .dies after interlocutory judgment, <&c. Tidd. 1116. It is true this statute has been considered a remedial Act, as in 1 Salk. 8, and 7 T. Rep. 31, where the assizes and sittings are considered as one day; but nevertheless it has never been enlarged to any cases but where verdicts are given, and even then, where there are two or more parties, plaintiff or defendant, the death of one caused an abatement. Carthew, 149, 200; 1 Shower’s Rep. 402 — 3—4. 2 lb. 177.
    Then came the Stat. 8 and 9 Wm. 3, c. 11, which provides for cases of death between interlocutory and final judgment, “ if such action may have been,” <fec., Tidd, 934, and when there are two or more persons, and one die, and the cause of action could survive. There is a marked difference between the proceedings under these two statutes, and they should not be confounded by misapplication to the circumstances. The rules of practice must be strictly observed. Cited Tidd; 1118; 1 Wilson, 243; 1 T. Rep. 38S; 1 Wm’s. Saund. (5 ed.) 66, (2.)
    The judgment is not under this statute against the party dead, but against his executors, (fee. Salk. 42. Bingham on Ex’nl1. 134, 135. Archbold’s Prac. 291; Forms, 439 lb. These forms are for scire facias. 1. In case the defendant die after interlocutory judgment, to show cause why the damages should not be assessed; and 2. After assessment, why the damages so assessed should not be recovered; and are well worth a special examination, as shewing the practice to be as contended for by the appellant.
    We have now shewn, 1st. that at common law the action would abate. 2. It is not saved by the 17 Car. 2, as that applies only to verdicts, and where there has been no interlocutory judgment. 3. That it either abates or is saved by 8 and 9 Wm. 3, c. 11, and that the proceedings must conform to the requisitions of the statute. The rules of practice, and the forms upon damages assessed on writs of inquiry executed, have been shewn. As to writs of inquiry, &c. cited Bingham on Judgments, 4, 5; 2 Wm’s. Saund. 107, (n. 2;) Tidd, 47. It is clear, therefore, that the reference to the Prothonotory, in Common Pleas, and Master in King’s Bench, is, as is expressed by Archbold Practice, 2 vol. 39, “ as substituted for a writ of inquiry.” See lb. 32, et seq. The same rules therefore apply to the calculation by the Prothonotory and Master, as to the assessment on writs of inquiry executed and returned. Our Act of 1809 (7 Stat. 308) simply declares that the clerk shall exercise the same functions as the Prothonotory and Master in C. P. and K. B. — fixes his fee, and enacts what was and'is the practice at Westminster, relieving the plaintiff from proof of his demand, which was supererogatory.
    “ The order for judgment,” in the Act of 1809, is only interlocutory judgment, and is the same as what is termed “judgment by default,” in the Act of 1791. Cited Dubose vs. the Administrator of Dubose, Cheves, 29; Kincaid vs. Blake, 1 Bailey, 21, (note.) The case of The Executor of Lynch vs. Executor vf Inglis, 1 Bay, 449, was not only decided, as the reporter remarks, on the equity of the statute of Charles, but on the ground that the suit was brought on a bond, and that the order for judgment, was a final judgment — -that therefore, being an order for judgment, or a judgment by default on bond, the judgment was obtained before the death of defendant.
    The importance of settling the rule is maintained in this case. Under the Executor’s Act of 1789, “judgments, mortgages, and executions, the oldest first,” are to be paid by the executor, in a certain degree of priority. 1 Bailey, 111. “ Debts take rank according to the footing on which they stood at the death of the testator, to which period the order of payment must be referred.” Hutchison vs. Bates, Executor, et. al.
    
    Now, if at the death of testator, there had been several judgments, what would be the date of the judgment in this case ?— Judgments in our State, recovered in term time, bear date from the entry on the rising of the court. — They are'not considered judgments until then. A judgment confessed by intestate during term time, taking date from the entry, would, as decided in Magrath’s case this term, have had priority. Even then, if this case had been within the statute of 17 Car. upon a verdict on issue tried, at the defendant’s death it would not have been a judgment. What then ? Its grade being fixed at the death, and not a judgment, it would have been a simple contract debt, and come under the rule in Hutchison vs. Bates — 1 Bailey, 111. This however may may be considered as not the true issue now, but to depend on other proceedings, should any be adopted by plaintiffs. It may not be improper to cite here, 6 T. Rep. 368; 2 Strange, 882-1081, where the injustice and inconvenience of the legal-fiction about the first day of term, respecting judgments under the English practice of confession by warrant of Attorney, will demonstrate the improvement of our system, both as to confessions in propria persona, and of our judgments not being entered until the last day.
    
      Bailey, Attorney General, contra.
    
      Eckhard, same side.
   Curia, per

Richardson, J.

The ground of the Circuit decision is, that after the assessment of the debt and interest by the Clerk, nothing remained for the court to do.-— The plaintiff’s chose in action was no longer merely under the interlocutory judgment, which assumes that money is admitted to be due; but became, by the assessment of the 8th of January, res judicata, or a debt of record, ascertained and adjudged, and nothing remained but to enter up the written formula of such judgment. But this the 11th rule of court required to be postponed to the last day of the term, when all judgments of the same term are to be so entered up on the same day.

After what has been said of this rule of court, in the cases Hutchison vs. Magrath — the same against Boyce and Stoney, and the Union Bank against McGrath, little further need be added. The rule does not alter the right of the successful litigant to put the judgment of the court on the file, nor does it lessen its force or meaning. It merely postpones the formula of entering it up as the final judgment.

The Act'of 1746 (7 Stat. 193) relates only to judgments still interlocutory — i. e. when the amount of the plaintiff’s demand is still to be ascertained by some judicial inquiry. That Act presupposes the demand still no more than a chose in action, at least in amount, and can therefore have no relation to a case like the one now before the court, where the amount has been ascertained by a judicial process under the Act of 1809, i. e. by the Clerk’s assessment. After that, nothing remained interlocutory, or inchoate— nothing for a future Judge, Jury or Clerk. For what end, then, could the writ of sci. fa. be issued 1 In the case of Dibble against Taylor, decided on Monday last, my brother Wardlaw has so fully presented both the practice and statutory law upon the precise question now before us, that, unless there be some difference between a debt assessed by the Clerk under the order of the Court, and that ascertained by the Judge himself — which difference I cannot perceive, this case is already settled by the decision in that. But as that decision refers to the present as authority on one point of that case, to wit, i. e. for entering up the judgment after the death of the defendant, Taylor- — and so far the two cases are identical; and they being cotemporaneous decisions, I add a brief supplement to his exposition and argument.

For that purpose, I extract the common law rule from 2 Tomlins, 290:

“At common law, a judgment, if entered during the term, related to the first day of the term; and when a party was entitled to sign judgment, it might be altered during vacation, as of the preceding term”

Now, then, only change the 11th rule of court, which can alter no legal right, as may be seen in the three cases first referred to — only change it from the last to the first day of the court, i. e. make it express the law as it really is, and as just extracted, and the judgment being entered up accordingly, it would then be seen, by barely reading such judgment, that the notion of there being any abatement because the judgment was entered up after the death of the defendant, was merely ostensible, and not real, because the law of the plaintiff’s judgment is the same as if the rule were actually so changed. For so rational a construction of the rule of court, and making it conform to Jaw, there can be no more satisfactory authority than that taken by the defendant’s counsel in his argument from the venerable Plowden, 465, who says, “ the internal sense of an Act makes its law.” So here, the sense of the rule is in its application under the law, which the rule cannot alter or even modify, but follows implicitly. What then is the entire proposition of the Circuit Judge, sustained much more by the authoritative references in the case of Dibble vs. Taylor, than by any now offered 1 It is this: that the Act of 1809 puts the assessment of debt and interest by the Clerk, in the place of a verdict. The Act is remedial, and the substitution of the assessment must be identical in effect with verdicts.

The assessment, then, entered on the 8th of January, became as a decree of the Court; and'the subsequent death of the defendant could only abate, or rather suspend, further additional proceedings growing out of the judgment — not the judgment itself, which consists in the res judicata.

All the objections, when duly considered, admit perhaps of little question. But the interests of the creditors of the defendant to be effected by the lien of the plaintiffs’ prior judgment, called for this much consideration by the court. The appeal is unanimously dismissed.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  