26 U.S. 136
1 Pet. 136
7 L.Ed. 85
JOSEPH MANDEVILLE, ONE OF THE FIRM OF RICHARD SLADE &
CO., PLAINTIFF IN ERROR,
GEORGE HOLEY AND THOMAS SUCKLEY, JOINT MERCHANTS IN
TRADE, UNDER THE FIRM OF HOLEY & SUCKLEY,
DEFENDANTS IN ERROR.
January Term, 1828
ERROR to the Circuit Court for the county of Alexandria.
An action was instituted in the Circuit Court for the district of Columbia, by the defendants in error, against Richard Slade, James Anderson, and the plaintiff in error, trading under the firm of Richard Slade & Co.; and the suit having abated, as to Slade, by his death, and by return, as to Anderson, it was prosecuted against Joseph Mandeville only.
The declaration contained the usual money counts, and the damages were laid at ten thousand five hundred dollars.
By consent of parties, an order was made by the Court, referring the accounts to the Auditor of the Court, to state and report them to the Court; this report to be subject to exceptions; and when the report should be settled, then the same to be substituted for a trial by jury, and a judgment to be entered for the whole sum, which should be finally ascertained by the Court to be due.
The Auditor reported a balance of 2403l. 2s. 6d., of which 1860l. 6s. 7d. was principal, to be due to the plaintiff below; which, with the exchange, amounted to eleven thousand six hundred and ninety-five dollars and twenty cents, deducting the interest included in the balance reported by the Auditor; the principal of the debt found to be due, was less than the damages laid in the declaration.
No exceptions having been filed, Mandeville, the plaintiff in error; at a term subsequent to the report, came in, and confessed a judgment for the sum reported, with interest, from the 7th of December 1824.
Mr. Swann, for plaintiff in error.
Mr. Taylor, for defendants in error.
Mr. Swann.—The writ issued in a case, is no part of the record, unless oyer of it is craved; and the confession of judgment goes to the declaration, in which, the damages claimed, are stated to be 10,500 dollars. Upon the confession of judgment for 11,695 dollars 20 cents, the Court gave a judgment which was erroneous, as to this sum, beyond the amount claimed in the declaration. The law of Virginia, which authorizes a jury to give damages, as the principal of the debt, to the amount laid in the declaration, and to allow interest from a preceding period, making the whole amount of the verdict greater than the damages in the declaration; does not apply in this case, as the debt is a sterling debt.
If this judgment is sustained, the plaintiff in error will be compelled to pay interest upon interest, as both principal and interest are included in the sum allowed by the Auditor. The verdict of a jury, giving the principal and interest from a particular day, on the same, would have had a different effect.
Mr. Taylor, for defendants in error.——
The Court should allow the defendants damages upon the amount of the judgment, as the plaintiff in error was not justified in thus proceeding against his own confession of judgment, and its whole purpose was delay. The form of the confession of judgment is such as is usual; and it is the same form of judgment, as upon the verdict of a jury. The law of Virginia authorizes a jury to give damages, which may, in the whole amount, exceed the damages laid in the declaration. The interest being stated to commence at a period anterior to the day of trial, a party may come in, and agree to enlarge damages. By the Act of Assembly, in Virginia, in 1792, a judgment by confession is equivalent to a release of errors.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.——
The Court are satisfied in this case, that under the law of Virginia, a confession of judgment by the plaintiff in error, in the original suit, is a release of errors.
Judgment affirmed, with costs and damages, at the rate of six per centum per annum.