
    
      Susannah Wilkie vs. A. Y. Walton.
    
    1. Assumpsit on an inland bill of exchange, to which there had been a default in appearance, and on which there had been no written acceptance by the drawee. After the term to which the writ was returnable, a declara* tion was filed, in which the acceptance of the bill was averred, and the amount claimed set forth. An order for judgment was taken, and the case was put on the writ of inquiry docket. At the succeeding Term, the case, when called, was referred to the clerk, who assessed the damages on the original bill. The defendant not having accepted the bill in writing, it was held that the plaintiff’s demand was not liquidated within the meaning of the Act of 1809. Judgment entered up on the assessment set aside, and the order for judgment by default. The default on the part of defendant would have been satisfied by any damages, without going the whole, and saying the precise cause of action was admitted. A liquidated demand ascertains and fixes by writing, with or without seal, a plaintiff’s debt; but it must also be the writing of the defendant, actually or by operation of law.
    2. Where a demand is within the Act of 1809, and there is default inappearance, this confesses the action and dispenses with a writ of inquiry. Vide The Bank vs. Va/wgha/n, 2 Hill, 557.
    3. When a final judgment is regular, the defendant is not allowed to set it aside, and to appear and plead, on account of his attorney neglecting to appear for him; for when a judgment goes against a defendant properly served, and under no legal disability, it concludes every previous matter between the parties.
    4. But where, by the final judgment, the case is not concluded, and the defendant swears that he employed an attorney to appear, although there may be a mistake between him and the attorney, yet the fact of employment being made out, the failure to appear ceases to be the act of the client, and he will be permitted to appear and plead.
    
      Tried in the City Court of Charleston„ before his Honor the Recorder, January Term, 1844.
    Motion to set aside judgment, and for leave to appear and. plead. In this case it appeared that about the middle of May last, (1843,) a writ was served on the defendant, at his place of residence in Charleston, at the suit of the plaintiff, returnable to the July Term of the city court. During that term of the court no appearance was entered, in court for him ; and after its session, on the 26th of July, a declaration in assumpsit on an accepted bill of exchange, was filed against him, and an order for judgment taken, and the case put on the writ of inquiry docket for trial. At the November Term of the court, the case was called on the writ of enquiry docket, and it was referred to the clerk, as a case arising on an inland bill of exchange. He assessed the damages of the plaintiff on the original bill, of which, as it appeared on the examination of the bill, on the argument of this motion, the defendant had not given a written acceptance. The count on the bill in the declaration, alleges that the defendant did accept it. On the clerk’s assessment, judgment was entered for the plaintiff, and execution issued.
    The defendant’s counsel, in support of the motion to set aside the judgment, submitted the affidavit which accompanies this report; and on enquiry of the counsel named in the affidavit, the court was satisfied that the defendant labored under a mistake in concluding that he had instructed his counsel to enteran appearance for him in this case. The court did not in the least doubt that the defendant had so intended to instruct his counsel, and that he, the defendant, was entirely convinced that he had so instructed his counsel. But though the affidavit did, by necessary inference, admit the service of the writ, the copy of it was not given to his counsel, and from the middle of May to the end of November, during two sessions and one long vacation of the court, no effective attention was paid to it.
    It is important to all the parties that this case should be speedily and finally determined ; and as it must be settled in the Appeal Court, without attempting to examine minutely the able arguments, and the authorities by which the counsel for the defendant sustained, and the counsel for the plaintiff opposed the motion, this court will state its decision on the motion, and the grounds of that decision.
    Two grounds were taken by the counsel for defendant, in support of the motion.
    1. That on' the affidavit of the defendant, this was a clear case of mistake between the client and the attorney, for which the court would relieve; cited the cases of Williamson vs. Cummings, 2 M’C. 250 ; Parr vs. Evans, 1 M’C. 283; and Stark vs. Woodivard, 1 N. & M’C. 259, and commented on the case of Schroder vs. Eason, 2 N. & M’C. 291.
    2. That this was not á liquidated demand, within the Act of 1809 ; 1 Brev. Dig. 39, sec. 32, 7 Stat. at Large, 308; and could not, therefore, be referred to the clerk, and the final judgment was irregular, and the cases of Elliot ads. Mynott, 2 M’C. 125; Blackwood & Brenan vs. Leman, Harper’s L. R. 219; Conyers vs. Magrath, 4 M’C. 392; Weldon vs. Sherburne, 15 John. 409, were cited, to shew what was a liquidated demand.
    By the Act of February, 1791, 2 Brev. Dig. T. 131, sec. 17, 7 Slat, at Large, 263, the defendant in an action is required to enter his appearance with the clerk of the court, during the sitting of the court to which the writ is returnable. This has been the uniform practice. Savage vs. Mitchell, 2 Tread. 629; Schroder vs. Eason, 2 N. & M’C. 291; Lawervs. Smyth, 2 Bail. 259. This did not seem to be a case of mistake between client and attorney. The attoi'ney had not committed a mistake. Though the defendant might have had a good defence, if, by his own mistake or inattention he had lost the opportunity and the right to make that defence, the court had not the power to relieve him. Vigilantibus, et non dormientibus, jura subveniunt. The defendant had slept over his alleged right. The case of SJiroder vs. Eason presented a strong appeal to the discretion of the court, and in that case a similar motion had been refused. The defendant was not entitled to relief on the first ground taken for him.
    On the second ground taken, the fact that the bill did not appear to have been accepted in writing, was strongly pressed on the court, and was certainly entitled to grave consideration. But its acceptance was averred in the declaration. The defendant, by his default, had acknowledged the cause of action set forth in the declaration, and the amount claimed was set forth — was liquidated — ascertained — by that cause of action. The principles established by the Appeal Court, in the case of the Bank of the State of South Carolina vs. Vaughan, 2 Hill’s Rep. 556-7, seemed to the court to rule the one now under consideration, and the defendant’s motion was, therefore, refused.
    Defendant appealed, on the following grounds.
    ' 1. That the judgment by default having gone in consequence of mistake between bis attorney and defendant, it should have been set aside, and the defendant been permitted to plead.
    2. That final judgment in said case was irregular, in that it was referred to the clerk to assess the dameges as upon a liquidated demand. Whereas, it is submitted, that the same is not a liquidated demand, within the meaning of the Act of 1809.
    
      Lee Sp Pressley, for appellant. Yeadon <& McBeth, contra.
   Curia, per

O’Neall, J.

In this case, the first question which I shall consider is, whether the case was properly referred to the clerk. The Act of 1809, 7 Statutes at Large, 308, directs “that in all actions now pending, or hereafter to be brought, on any liquidated demand, wherein the defendant or defendants shall have suffered an order for judgment to be entered against him or them, it shall not be necessary for the plaintiff or plaintiffs to prove his, her or their demand, or execute a writ of inquiry, but the same shall, on motion to the court, be referred to the clerk, to ascertain the sum actually due, and judgment shall be entered up accordingly for the sum so ascertained.” The question, what is a liquidated demand within the meaning of this Act, must be fixed with perhaps more precision than was done in Crowther vs. Sawyer & Steele. As was then said, it ascertains and fixes by writing, with or without seal, the plaintiff’s debt; but it must also be the writing of the defendant, actually or by operation of law. A judgment is ihe ascertained debt of the defendant, by evidence in writing, the record which authoritatively and conclusively declares it to be the debt of the defendant; and hence it is ascertained by that which is in law his writing. But there is no other case of which I am aware, where a demand in writing, to which the defendant is not a party by his signature, can be called a liquidated demand. The one which would approach nearest to it, would be in an aetion on an award; that, when the result of a written submission, might be referred. In England, whence we have adopted this practice, after interlocutory judgment by default, it seems that the Judges will refer to both master or prothonotary, on an affidavit, of the nature of the aetion, actions upon bills of exchange and promissory notes, and covenants for the payment of a sum certain, as upon a mortgage, or for rent, or arrears of an annuity, or an award, in order to compute the principal sum due, and the interest. 1 Tidd’s Prac. 570. They have refused, in every case, however, to make such reference, where there was the slightest uncertainty as to the obligation of the debt, or the interest due. 1 Tidd’s Prac. 571-2. In the various cases cited in the argument, no instance was brought to our view where the court had, in this State, referred a demand to the clerk, to which the defendant was not a party by his signature. It was, however, contended with great force, that the default admits every thing stated in the record, and here, as it was alleged that the defendant had accepted the bill, and that was in writing, there was nothing to prevent a reference. When a demand is within the Act, as when he is a party in writing to the liquidated demand, then, as is said in the Bank vs. Vaughan, 2 Hill, 557, “ the defendant’s default confesses the action,” and “ the Act regards the demand as set out on the record, to be confessed, so as to require no proof, and to dispense with the execution of a writ of inquiry.” That case was on a note of hand, made or indorsed by the defendant. The copy was filed with the declaration, and on that the clerk made his assessment, and it was held to be good, for the defendant, by writing, was a party to an instrument which ascertained the sum due. But if that case had not been within the Act of 1809, it could not have been said that a default did more than admit a cause of action. 1 Brev. Rep. 300. Such an admission as that would not prevent this case from being the subject of a writ of inquiry. The action here is on a bill of exchange drawn on the defendant. He did not accept in writing. His default is satisfied by any damages ; for it may be that in ignorance of the true cause of action, he supposed the plaintiff to have some slight cause, which he was not willing to litigate ; or that, knowing they claimed to recover on this bill, and believing that they could not prove his acceptance, he preferred to let them even have a nominal verdict against him, rather than be at the expense of defending himself.

It is true these are mere suppositions, but in this way a default may be satisfied without going the whole, and saying the precise cause of action is admitted.

The danger of referring demands to the clerk, unvouched by the writing of the defendant, is strikingly illustrated by this case. Here a demand, without the slightest evidence on its face of the defendant’s liability to pay it, is referred to the clerk, who merely calculates the sum due, and thereupon, without a shadow of proof, the defendant is, by the judgment of the court, as is set out on the record, considered to be liable to pay the sum so ascertained. Such a judgment, without proof to sustain.it, cannot be supported; for the clerk had no right to assess damages against the defendant, on a paper to which his eyes would tell him he is no party. In England, the mere absence of a precedent to refer an action on a foreign judgment, was held to be reason enough to prevent the reference. 1 Tidd’s Prac. 571. So, here, the absence of a precedent is enough to prevent the reference of such a case as the present.

The judgment must, therefore, be set aside as irregular. Being set aside, I think the only objection to the defendant’s appearance is removed. When the final judgment is regular, the defendant is not allowed to set it aside, and to appear and plead, on account of his attorney neglecting to appear for him; for when the judgment goes against a defendant properly served, and under no legal disability, it concludes every previous matter between the parties. But when the case is not concluded, and the defendant is able to bring himself within the rule that his failure to appear resulted from the act of God, or his attorney, then he is entitled to appear and plead. In this case the defendant has sworn he employed Mr. Eckhard to appear for him ; and although it is manifest that there was some mistake between Mr. Eckhard and him about it, yet there can be no doubt of the fact of employment; and when this is made out, the failure to appear ceases to be the act of the client; and according to the rule he must be let in, to appear and plead.

The motion to reverse the decision of the Recorder is granted. The judgment entered up on the assessment by the clerk is set aside ; so is the order for judgment by default, and the defendant is permitted to appear and plead issuably.

Richardson, Evans, Butler and Frost, JJ. concurred.

Wardlaw, J.

dissenting. I agree with the Recorder, that the accepted bill of exchange was a liquidated demand, which, under our Act of 1809, may be referred to the clerk. Clearly it would, by the English practice, go to the master or prothonotary, as a definite contract specially declared on, the amount of which depends merely on figures. It is adjusted — ascertained with precision; that is, to meet the phraseology of an Act, liquidated. The jury could not, without the sanction of this court, give upon such a paper found or admitted, more or less than the principal and interest , and whenever default has established the liability, and the amount can be fixed by mere computation upon inspection of a writing specially declared on, the inquiry is, I think, dispensed with by the Act.

That the writing does not appear to have been actually or impliedly signed by the defendant, is, I think, of no consequence ; the acceptance is alleged just as it would have been if it had been made in writing; and the contract of the defendant, expressed by the writing to which he became a party by acceptance, is specially declared on, and is of that precise character which excludes all discretion in the jury.

It has been urged that an acceptance may be partial or conditional, as well as absolute, and that when it does not appear in writing to be absolute, it cannot, in such case, be necessarily taken to be so; but the declaration alleges it to have been absolute, and the default admits it to have been so, more especially as under such an allegation there would have been no recovery at all, if the defendant, upon appearance, had shewn the acceptance to have been either partial or conditional.

This case of a mercantile contract, when legal effect and amount are precisely fixed, specially declared on, differs wholly from one of an ordinary contract in writing, which may, with equal conformity to legal requisites, be either in writing or in parol, and upon which damages, although sometimes they may be accurately estimated by general rules, are not fixed by any positive regulation ; and this case differs much more from them upon the common counts for goods sold, money had and received, account stated, <fcc. where the default admits something to be due, but the quantum depends upon the weight which the jury may give to the proof, even if a writing signed by the defendant should enter into the proof.  