Wilkie v. Walton

Citations

• 29 S.C.L. 473

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p>