
    
      David Crowther vs. Sawyer & Steel.
    
    1. A judgment is a liquidated demand, and may, therefore, be referred to the clerk, under the Act of 1809. '
    2. A judgment bears interest-, as a matter of course, when recovered on a contract; there is nothing left on a default, but to compute the interest, in order to entitle the plaintiff to his judgment.
    3. Conceding the reason upon which Dinkins Macon vs. Vaughan <$• McLaughlin, (1 McC. 554) proceeds, that a judgment by default in debt is final, and does not need a reference, it does not follow that there should not be a reference. For the final character of the judgment ascertains nothing but the sum demanded; the interest, if interest be recoverable, could. not be embraced in such a judgment.
    4. The rule laid down in Lambkin vs. Nance, 2 Brev. Rep. 97, and in Harrington vs. Glenn, 1 Hill, 79, referred to and approved.
    5. The case of Dinkins <£■ Macon vs. Vaughan. <%• McLaughlin, proceeding upon two reasons. 1st. That a judgment by default in debt is final, and does not need a reference; and 2d, That interest does not follow of course, upon the judgment; held.to he unsound, and overruled.
    6. An attorney in fact, having a full power to sue for and collect a judgment, assigned it. The assignment carried with it authority to use the name of the person who had executed the power to sue for and collect it, and the assignee would have been authorized to receive the money when collected. The judgment obtained being set aside as irregular, the defendants were permitted to appear and plead nunc pro tunc, and the attorney in fact, who was also the attorney at law, having died, the presiding Judge granted leave to substitute an attorney who had authority from the assignee, but not from the party who had executed the power, to prosecute the action. Had not the assignee been regarded as the proper party to protect the judgment, then proceedings on the part of the defendants with a view to set aside would have been irregular, the original owner of the judgment having no notice. Motion to reverse the order of substitution dismissed.
    7. Judgment set. aside as irregular, and leave granted to the defendants to appear and plead, but for which the presiding Judge would have ordered an issue, there being a rule to enter satisfaction, to test the question. There was some evidence that the attorney who had recovered the judgment, and who was deceased, had received a sufficiency of money to pay the debt, but it was not certain that it had not been applied to pay other liens on the property of the defendants in the judgment. Under these circumstances, the court ordered an issue to try the question of satisfaction.
    
      Before Evans, J. at Charleston, March Term, 1843.
    This was a motion to set aside a judgment for irregularity, under the following circumstances. In 1824, the plaintiff obtained a judgment against the defendants, which remained unsatisfied up to 1837. In 1836, some correspondence took place between O. M. Smith, lately an attorney in Charleston, and since deceased, in relation to the purchase of the judgment. Smith offered the plaintiff, who resided in England, five hundred dollars, which the plaintiff agreed to accept, and immediately sent Smith an ample power to sue for and collect the debt. Soon alter this, Smith issued a writ in debt against the defendants on the judgment, which was personally served on one of them. At January Term, 1837, the case was on the enquiry docket, no appearance having been entered. When called, it was referred to the clerk, who assessed the damages of the plaintiff for the original debt and the accruing interest, amounting to upwards of fifteen hundred dollars. At May Term, 1841, a rule tp enter satisfaction was taken out. To this, Smith made a return too late in the term to be acted on. From that time no further proceedings were had until now, in consequence of negotiations pending between Smith and Mr. Yeadon, the attorney for the defendants. The presiding Judge granted the motion to set aside the judgment, on the authority of the case of Dinkins & Macon vs. Vaughan & McLaughlin,
    The plaintiff had leave to put his case on the Inquiry Docket of this term. 4,
    Thé plaintiffs appealed from his Honor’s decision, and moved the Court of Appeals to vacate or rescind the order made in this case, upon the following grounds.
    1. Because a judgment is a liquidated demand, and this case was properly referred to the clerk to be assessed, and the judgment on that assessment was regular, and cannot be set aside on that account.
    2. Because some error injurious to the defendants should be alleged and proved to exist in the judgment, before it should be set aside, even for irregularity, after so great a lapse of time as in this case.
    The judgment being set aside for irregularity, and the defendants permitted to appear and plead nunc pro tunc, the original attorney, O. M. Smith, being dead, on motion of Messrs. McCrady & Caldwell, they were substituted attorneys on record, on behalf of one Phineas Pierce, who claimed to be the assignee of the original judgment, under an assignment executed by Ó. M. Smith, as attorney in fact of D. Crowther. Previous to the granting of the motion, Mr. Yeadon, for defendant, required of Messrs. McCrady & Caldwell the production of their warrant of attorney, and the objection was overruled.
    Defendant appealed from this order, on the following grounds.
    1. That in a case so full of suspicion as the present, his Honor should have required from the counsel moving to be substituted as attorneys on record, their warrant of attorney from the plaintiff, D, Crowther, before granting the order of substitution.
    
      2. That the power of attorney, under which O. M. Smith acted, does not authorize the assignment made by him to Pierce, and Pierce has no right to be represented by. attorney in this case.
    3. That the assignment executed by O. M. Smith, does not assign the judgment in question; and is void also as not executed in the name of his principal.
    4. That the decision of his Honor was otherwise contrary to law.
    Crowther had appointed Smith his attorney in factj who assigned the judgment to one Pierce; this assignment carried with it the authority to use Crowther’s name to collect and enforce the judgment. Pierce would have been under the assignment authorized to receive the money when collected. The judgment being set aside, and Smith, the attorney, being dead, it became necessary to substitute another; the court thought Pierce had the power of appointment, and granted leave to substitute Mr. McCrady, who had authority from Pierce, but not from Crowther, to prosecute the action.
    A rule was also served on plaintiff, to shew cause why satisfaction should not be entered on the original and revived judgments in his favor against defendants. Sundry affidavits were submitted on both sides, which were submitted to the Court of Appeals. At the same time that this rule was served on plaintiff, another rule was served on him, to shew cause why the revived judgment should not be set aside for irregularity, which rule was made absolute, the judgment set aside, and defendants, on motion, permitted to appear and plead, nunc pro tunc. The presiding Judge declined deciding the rule to enter satisfaction on either the original or revived judgment, in consequence of the proceedings on the other rule, and the'probability of an appeal from his decision thereon.
    Defendant appealed, on the grounds,
    1. That his Honor, it is respectfully submitted, should have acted on the rule to enter satisfaction; the proceedings and his decisions, on the other rule, constituting no bar to such action.
    
      2. That, on the affidavits submitted, his Honor should have made the rule absolute, and ordered the judgments, or at least the original judgment, to be satisfied.
    3. That his Honor should, at least, have ordered an issue to try the question of satisfaction.
    The above presents the facts of the case. There was some evidence that a sufficiency of money had gone into the hands of O. M. Smith, the attorney, to pay the debt; but it was not entirely certain that Smith had not applied it to pay other liens on the property of Sawyer & Steele. The court would have ordered an issue, but that the means of obtaining the same end was presented by another.motion made at the same time to set aside the judgment, and to grant the defendant leave to appear and plead to the action. The motion to enter satisfaction was, therefore, refused.
    
      McOrady & Caldwell, for appellant.
    
      Yeadon & McBeth, for appellees.
   Caria, per

O’Neall, J.

The first motion in this case which will be considered, is that of the plaintiff, which seeks to reverse the decision below, by which the judgment was set aside.

The Act of 1809, 1 Brev. Dig. 120, Tit. 39, Sec. 32, provides, “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 or their demand, or execute a writ of enquiry, but the same shall, upon 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 here presented is, is a judgment a liquidated demand % If it is, it was properly referred to the clerk, and the judgment was properly entered up, and ought not to have been set aside. The case of Dinkins & Macon vs. Vaughan & McLaughlin, 1 McC. 554, held that a judgment did not bear interest, as of course, and that it was not properly referrable to the clerk, and a judgment entered up on an assessment by the clerk, of the principal and interest due on a judgment, was set aside. That case, as a precedent, until reviewed and reversed, of course prevented any other decision than that given on the circuit. Here, however, if we think the case was decided wrong, it presents no such obstacle. For although the wisdom of the maxim stare decisis, is acknowledged, and we rarely think it prudent to overrule a former decision, yet when it conflicts with other decisions, or has proceeded upon a plain mistake of the law, it is our duty to put it out of the way. The case of Dinkins & Macon vs. Vaughan & McLaughlin, proceeds upon two reasons. 1st. That a judgment by default in debt is final, and does not need a reference; and 2d, that interest does not“follow of course upon the judgment. The first position may be here conceded, and still it does not follow that there should not be a reference. For the final character of the judgment ascertains nothing but the sum demanded; the interest, if interest be recoverable, could not be embraced in such a judgment. In consequence of this, it is every day’s practice to' refer to the clerk notes under seal, and any writing which ascertains a debt. The 2d reason, that judgments do not, as of course, bear interest, has the countenance of a single case, Daub vs. Martin, 2 Bay, 193, in which it was held, that on a judgment for a tort, interest is not recoverable. Whether that case is law, need not now be decided. For the judgment here is on a contract, and in the case of Lambkin vs. Nance, 2 Brev. Rep. 99, and Harrington vs. Glenn, 1 Hill, 79, it was held, that on a judgment on a contract, whether bearing interest or not, the plaintiff was entitled, as a matter of right, to recover interest on the aggregate of debt, interest and costs, so ascertained. These cases have established a rule, with which we are satisfied, and it follows that the reasoning of Dinkins & Macon vs. Vaughan & McLaughlin being unsound, it ought not to stand in our way, if we think that a judgment is a liquidated demand, and may, therefore, be referred to the clerk. What is meant by “any liquidated demand,” the words used by the Act of 1809 'l It seems to have been conceded, that whenever a sum certain was ascertained by writing, (under seal or without) to be due from the defendant to the plaintiff, it was a liquidated demand. Certainly a debt ascertained by record, stands at least upon equal, if not higher grounds, and bearing interest, as a matter of course, when recovered on a contract,, there is nothing left on a default but to compute the interest, in order to entitle the plaintiff to his judgment; and before the Act of 1809, in this State, this computation would have made it necessary .to execute a writ of enquirs. This the Act now dispenses with, and upon a reference to the clerk, tlje sum actually due is ascertained, and upon that, judgment may, as was done in this case, be entered up. The case of Dinkins & Macon vs. Vaughan & McLaughlin, 1 McC. 554, is overruled, and the motion reversing the decision of the judge below, is granted.

This makes it necessary now to go on and consider the question, whether an entry of satisfaction should have been ordered on the judgment under the rule! The presiding Judge states, that had it not been for the decision which he felt himself bound to make, setting aside the judgment, he would have ordered an issue to test the question of satisfaction. This course, we think, we should now pursue. For it may be, that a jury may conclude that the whole debt was paid; or it may be, that they may think that $850, the sum admitted by Mr. Smith’s affidavit, is the only sum paid. The power of the court to make such an issue, is unquestioned, and its propriety cannot be doubted. For where there is as much dispute about the facts, as there is in this case, it would not be safe to decide upon them under affidavits. But, it is asked, who are to be the parties to the issue! The answer is, let those act and defend who are interested. The issue must, of course, be entitled in the names of the plaintiff and defendants on record. But in such issue, Charles Clarke, acting in the name of Sawyer & Steele, will be the actor, and Phineas Pierce, the alleged assignee, in the name of David Crowther, will be the defendant. The motion to reverse the decision of the Judge below, on the rule to shew cause why satisfaction on the judgment should not be entered up, is granted ; and it is ordered that an issue be made up between the parties, as hereinbefore suggested, to try the question, whether the said judgment is satisfied1? And if not satisfied, to ascertain how much has been paid upon it 1

The motion to reverse the Judge’s decision on the substitution of the attorney, needs no further commentary, than to say, if Mr. Pierce be not regarded as the proper party to protect the judgment, then all the defendants’s proceedings, with a view to set it aside, are irregular. For Crowther has had no notice. But regarding Pierce, upon the shewing exhibited to us, as entitled to stand as assignee of the judgment, we think theye is no ground to dispute the correctness of the decision below. For this reason, as well as the reasons assigned by the Judge below, the motion to reverse the decision, whereby Messrs. McCrady & Caldwell were substituted as attorneys in the place of O. M. Smith, Esq, deceased, is dismissed.

Richardson, O’Neall, Evans, Wardlaw, and Frost, JJ. concurred.  