
    
      Wm. Trenholm vs. Thomas Bumpfield.
    
    Though a party may, in an action of debt on judgment, recover interest by way of damages, yet judgments do not, as other liquidated demands do, bear interest at common law. Where, therefore, a judgment is recovered on an open account, and the defendant pays it up before action of debt commenced thereon, he is not liable for interest. 
    
    
      Before the Recorder, in the City Court, January Term, 1832.
    Á judgment was entered up in this case, in the city court, on the 20th January, 1821, on an open account. Some years afterwards, the defendant paid to the plaintiff the amount apparent on the face of the judgment, including the costs, and took a receipt, without prejudice to the plaintiff, if interest thereon should be ultimately ruled to be due. Defendant then obtained a rule on the plaintiff, to shew cause why the judgment should not be satisfied, and the cause shewn was a claim for interest on the judgment.
    The judgment of his Honor, the Recorder, was as follows :
    !£ The plaintiff has received the amount of his judgment with costs. The defendant requires him to enter satisfaction on the record. This he refuses to do, unless the interest between the date of the judgment and the payment be also paid, and the question for the court is, his right to demand such interest. The plaintiff contends that, though his judgment was obtained on an open account, yet it bears interest, because all judgments bear interest — that it is clear all liquidated debts bear interest, and that a judgment is such a debt, and that if he had brought debt on judgment, he would indisputably have recovered interest, not because the action entitled him to it, for the action is only the remedy, but because he had a previous right to it, and the right and the remedy are distinct things. The principle that a liquidated debt carries interest, is correct as a general rule, but a judgment is either not such a debt, or it is an exception to the rule. The liquidation of a debt is the reduction of an uncertain to a certain sum, by the agreement of the debtor, evidenced by a written instrument, as a bond, note, or acknowledgment, and it carries interest as an incident of the contract; but when a disputed or dubious demand is ascertained by the judgment of a court, though the amount is made certain, yet this is not by the consent of the debt- or, but by compulsion, which precludes the presumption of a contract on his part to pay interest as an incident; and when more is sought for, a new suit must be brought on the judgment, and interest, ty way of damages, may, or may not, be recovered, according to circumstances. So true is this, that if sci. fa. be brought, no damages or interest is recoverable, for sci. fa. merely revives the old judgment — the action must be debt. But even if debt be brought, it does not follow that damages or interest are always recoverable. In Daub vs. Martin, 2 Bay, 193, in debt on judgment given in trover, it was held “ that interest could not be given, because trover was an action founded in tort, and sounding in damages, and no interest on damages is ever given.” But when interest is recoverable on a judgment, it is not qua interest, but as damages for the detention of the debt, and notwithstanding the classification of Domat, damages are not the natural fruit of a contract, as interest is, but something awarded by a jury for an injury sustained. It is true, the legal interest is made the standard of the amount of the damages in debt on judgment, and they have thus become confounded with each other, and thus produced the difference of opinion which is perceptible in the decided cases. But still there is no case which expressly determines that interest is due on a judgment; the language they hold is, that where debt is brought on a judgment, interest may be recovered by way of damages for the detention of the debt. Such was the decision in Lambkin vs. Nance, cited by Judge Cheves in Fishburn vs. Sanders, 1 N. & McC. 242, which is the foundation of the subsequent decisions on the point in our courts.
    If it be true that a judgment bears interest, for the reason given by the plaintiff’s counsel in this case, all judgments bear it, and that, too, on their amounts. We have just seen that a judgment in trover does not bear it, if the case in Bay be law ; yet it is what the plaintiff calls liquidated and certain. In debt on penal bond, the judgment is for the penalty, and though it merges the bond in a new and higher debt, yet the penalty never bears interest, even where the bond has doubled itself by lapse of time, but the interest is calculated on the condition, that is, on a' sum much less than the judgment. So where a judgment is given for the principal and interest due on a note, the interest is not calculated on the judgment, for that would be compound interest; and till the year 1815, nothing more could be recovered on such a judgment, except by a new suit. The Act of that year may be regarded as a law, declaratory of the common law, that judgments did not carry interest, and the remedy given by it was to make the principal sum of interest-bearing causes of action, on which judgments were awarded, bear interest after the judgment, and be recoverable in the execution ; but it left all other judgments untouched. That this declaration of the common law was correct, in the opinion of our judges, may be seen in Wilson & Paul vs. Alston, 1 Mill, 378, where the court refused to allow the plaintiffs interest, because they had entered up their judgment on defendant’s appealing ; but they say if judgment had not been entered. interest would have been given them. The judgment then stopped the interest, which would not have been the case if judgments bore interest. The cases of Fishburn vs. Sanders, Norwood vs. Manning, 2 N. &■ McC. 895, and Smith vs. Vanderhorst, 1 McC. 328, determine that in debt on judgment, interest may be recovered by way of damages for the detention of the debt. There is no case which determines that interest is due before action brought on the judgment, except under the Act of 1815; there, as was decided in Clarkson vs. Cantey, Harp. 312, interest accruing on a senior execution, after the date of a junior fi. fa. is payable before the junior Ji. fa. But at common law it is different, and the last case decided on the subject in our courts proves it; namely, Williams vs. Broughton, 4 McC. 112, where Judge Nott (who in other cases had contended that judgments bore interest) concurred in the decision, on the ground “ that the original judgment operated as a lien only to the amount then recovered, and that the subsequent judgment could not have relation bach, so as to have a lien for the amount of the damages or interest recovered, from the time of the first judgment.” Thence the conclusion is plain — if interest be the fruit of the judgment (as it is under the Act of 1815) it would operate as a lien in the same manner as the judgment itself; but as it has no existence till awarded by the court in a new action on the judgment, it does not constitute a lien until it is so awarded. The action upon the judgment appears to me so far to give the right as to save the claim of damages to the plaintiff, and is not to be regarded simply as the remedy to enforce a previously existing right. The right depends (as many others do) on a contingency. Defendant has (as a general rule) the right to have his judgment satisfied, if he pays or tenders its amount before suit brought; but if the suit be brought on the judgment before tender or payment, the plaintiff has a right to insist on interest by way of damages. The opinion of the eminent Judge who delivered the decision of the Appeal Court in the case of Williams vs. Broughton, I take to be the law on the subject; and I refer to it in the M S. as governing this case. As, therefore, a judgment does not bear interest before suit brought thereon, and it appears that the defendant has paid the plaintiff the amount of his, before suit, it is ordered that he do enter satisfaction on the record.”
    The plaintiff appealed, on the ground that the judgment bearing interest, and the payment being only a partial one, the rule ought not to have been made absolute.
    Grimke, for the motion.
    -, contra.
    
      
       Vide next case.
    
   Per Curiam.

We concur entirely in the very satisfactory and learned opinion expressed by the Hon. the Recorder of the city court, on the question made in the argument here. The motion is dismissed.

JohnsoN and O’Neall, JJ. concurring.  