
    Walters & Walker vs. McGirt, Meekins & Son.
    In cases on the inquiry docket, the cause of action being admitted, and the only question being as to the amount of damages, full proof as in other cases is not required.
    Interest is chargeable on factor’s accounts for advances or purchases.
    A charge for commissions on the balance, of a factor’s account sued for, will not be allowed.
    BEFORE WHITNER, J., AT MARION, SPRING TERM, 1855.
    The report of bis Honor, the presiding Judge, is as follows:
    “ This case was on the inquiry docket, and no appearance having been entered, the plaintiffs proceeded to execute their writ. Mr. Phillips presented himself, and claiming to represent defendants, was permitted to cross-examine the witness, and address the jury. I have since been served with eleven grounds of appeal; but having no notes of the case, and being unable to procure a copy of the account sued on, I am under the necessity of reporting from memory.
    “The original books of plaintiffs were in court, as also the original drafts and bills of lading, or shipping receipts, as they were perhaps called. Mr. Pinckney made the original entries, except, as I understood it, in two instances: wherein, though Mr. Pelot, a clerk in Charleston, had made the entries, the witness had made the shipments and forwarded the invoices, and' in that way proved the delivery. I cannot specify the items, nor were they brought to my notice particularly, though the objection was urged in argument. Bills having been furnished, and no objections made known to the house, I thought this proof might satisfy the jury of the delivery.
    2d. The witness proved that the charges for commissions, such as made, were in accordance with the usages of trade for sucb service. Plaintiffs accepted, and advanced upon drafts drawn on them; purchased, and forwarded goods, according to order; and procured money for defendants by indorsements on accommodation paper, and ehargéd commissions on each, which I thought legitimate, and submitted to the jury according to the proof.
    “ 3d. I did not think the charge of commissions on the balance struck was a proper charge, but the jury thought differently, and perhaps correctly, understanding mercantile usage better than I did — counsel having congratulated himself on the well-known intelligence of the foreman, a merchant of high-standing it was said, to whom I was accordingly much disposed to defer. The balance in fact being but an advance, was perhaps properly subject to a charge of commissions, on final adjustment.
    “4th. The objection urged on this ground I heard mentioned in the progress of the case, and especially in the argument, and requested to have it pointed out. This was not done; and leaving the jury to correct, if such error was committed, I looked no further.
    “ 5th. I thought the charge of interest on advances, especially on the proof of universal usage, was legitimate.
    “6th. No instruction was made of defect in the declaration, in the particular indicated in this ground; nor was my attention in any way called to the state of the pleading. I am not satisfied such a count was necessary.
    “ 7th. I know nothing of the matter charged in this ground; my attention not having been called either to the charge, or any omission to produce letter.
    “ 8th and 9th. In reference to these grounds, I can only say, the jury were instructed to note these particulars, and to reform the account in such way, as to deduct any double charge of commissions for the same service, or of interest upon the same sum, whether this may have been done on a balance struck, or otherwise.
    
      “10th. On the subject of this ground, the jury were instructed in accordance with the views of counsel; not having inspected the finding, or re-cast the interest, I cannot say whether the interest charged was added, and interest on the general balance allowed. This will be found a very small affair.”
    The defendants appealed, and now moved this Court for a new trial, on the grounds : .
    1. Because it was objected that the witness, Mr. R. Q. Pinckney, Jr., was not competent to prove any portion of the account, except the original entries made by him as clerk to plaintiffs; and that Mr. Pelot, who made a portion of the entries, being (as witness proved) in Charleston, should have been produced to prove the original entries made by him; and the presiding Judge overruled the objection, and charged the jury that the account was sufficiently proved.
    2. Because the presiding Judge charged that the charges for commissions for acceptances for goods purchased or furnished, and for indorsing the defendants’ note, were to be allowed; when it was objected that they were not proper charges, unless a special agreement was proved, such not being the custom of Charleston; and it was also submitted that the charges of commissions, at least so far as the defendants’ funds in hands of plaintiffs went, were not proper, but his Honor charged otherwise.
    3. Because it was submitted that the charge of commissions on the balance was not a proper charge, inasmuch as commis- . sions had been charged on each item in the account, and his Honor should so have charged.
    4. Because interest was charged on each bill from the day of purchase; whereas, it was submitted that interest should only have been charged from the day of payment, the usual terms of said purchases being four and six months, and his Honor should have so charged.
    
      5. Because the jury allowed interest on the whole sum claimed as a balance; when, it is’ submitted, that such an allowance was improper — and that no interest should have been allowed, without proof of an express promise, and no such promise was proved.
    6. Because there was no count in the declaration on a promise to pay interest, and such interest ought not to have been allowed.
    7. Because one of, the items of said account was a charge of a balance due July 1st, 1853, by James McGirt & Co., of <§273 78 ; and no evidence was adduced to sustain the correctness of said charge — nor was the letter referred to in said item, authorizing said charge, produced.
    8. Because it was submitted that commissions were- three times charged on the amount of <§1,299 87, brought down September 24th, 1853, and twice charged on the balance of the items of the account.
    9. Because the item of $31 41 interest last charged was improper, the interest having been before charged.
    10. Because interest has been charged on interest.
    11. Because the verdict was against the law and evidence.
    
      Phillips, for appellant,
    cited Harp. 184.
    
      Harllee, contra,
    cited 2 Bail. 407.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, without noticing the grounds seriatim, I will briefly notice what is regarded as material in the cause.

In a case standing on the inquiry docket, the default admits the cause of action, and the only inquiry is as to the quantum of damages. Any reasonable proof of the amount of the debt or demand is primé facie enough. I have never deemed it necessary in such a cáse to require proof of a merchant’s account by the proofs of the original entries; proof that the account sued on and exhibited to the Court, is a true copy of the original entries, is enough to ascertain the quantum of damages. More than this was done on the present occasion. The defendants had the right to examine the account, object to the items as improperly charged, and even to call witnesses to show that they were charged too high, or that they ought not to have been charged at all.

On looking over the account it is objected that interest on advances or purchases by the plaintiffs as factors ought not to be allowed. Since Sollee & Warley vs. Meugy, 1 Bail. 620, such an objection cannot be sustained. So, too, there is nothing in the objection that interest is charged on the balance, and that thus interest is charged on interest; — for it appears that the credits allowed the defendants greatly exceeded the interest charged in the account before the balance was struck. The rule that payments are to be applied first in extinguishment of interest is uniform. Hence the balance of the account would be principal for payments and advances: and would properly bear interest.

But the charge for commissions on the balance cannot be allowed. The plaintiffs had been allowed in the account commissions for all the items of their account for which they were entitled to charge. They cannot be allowed commissions on the balance for the payment to themselves.

The motion for a new trial is granted unless the plaintiffs shall enter a remittitur on the record of $88 75, the commissions improperly charged. If, however, this be done, then the motion is dismissed. *

Wardlaw, Withers, Whitner, Glover, and Munro, JJ., concurred.

New trial nisi.  