Adams County MsArchives Court.....Soria, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Soria v. The Planters’ Bank.

pages 46-53

A judgment by default on the special count, without a discontinuance on the 
money counts, is not error. 

The account required by the statute to be filed with the declaration of the 
plaintiff, must state distinctly the several items of his claim against the 
defendant.

A general statement of account filed with the count for money loaned, "that 
the defendant was before a particular day mentioned in the count, indebted to 
the plaintiff in 8000 dollars, for money before that time loaned," is not such 
an account as the statute requires.

ERROR to the circuit court of Adams County.

This was an action of assumpsit, against the plaintiff in error as endorser of 
a promissory note.

The declaration contained a count on a promissory note; the common money 
counts in an insimul computassent count. There was a general judgment by 
default, without a discontinuance of the money counts.

Two errors are assigned:
1. That the action ought to have been joint against all the makers, and 
endorsers of the note.
2. That it was irregular to take a judgment by default without a 
discontinuance on the common counts.

Winchester, for the plaintiff in error.

The error assigned is, that there is no discontinuance of the common money 
counts, and the count on the account stated; and that a judgment upon these 
counts, without the verdict of a jury, is erroneous. 

Although this court in the case of Gridly v. Brigs, La Coste & Co., at the 
last term of the High Court of Errors, decided that it is unnecessary to 
discontinue the common counts, and that a judgment rendered upon them is not 
erroneous for want of a verdict of a jury, yet it is respectfully suggested 
that the court mistook the nature of the objections taken by the appellant in 
that case, and erred in its decision.

The court based its decision upon two grounds:
1. That all omissions and errors are cured in a judgment by default, by the 
statute of jeofails, which would be cured upon a verdict.
2. That the statute requiring an account of items to be filed with a 
declaration to let in proof of items, operated to render common counts mere 
surplusage, no counts at all, in all cases where no account of items is filed.

1. It was admitted that, at common law, this judgment is erroneous for want of 
a verdict. But it was argued and decided, that the statute of jeofails and the 
statute requiring an account of items to be filed, had altered the common law.

As to the effect of the statute of jeofails, the court proceeded upon the 
mistaken supposition, that the appellant's objection to the judgment was to a 
want of certainty in the judgment, as to which of the counts in the 
declaration the judgment applied, and under which of the counts the evidence 
was received by the clerk, or court in rendering the judgment.

But no such objection is taken. The judgment is certain. It is a certain 
judgment upon all the counts in the declaration. The legal presumption is, 
that the judgment is founded upon any, and all such legal and proper evidence 
as is admissible to prove all the counts.

It was not then any uncertainly, to which appellant objected as the ground of 
error. The sole objection was, that there was no verdict, and that there is no 
statute or law of this state, which authorises an assessment of damages, upon 
the common counts or the insimul computassent count without a writ of inquiry 
and the verdict of a jury. The right of trial by a jury of the country, 
guaranteed by the constitution to the plaintiff, was here violated.

The statute of jeofails does not cure the omission or defect, because the want 
of a verdict is surely not an error or omission which is cured where there is 
a verdict.

2. As to the effect of the statute requiring an account of items to be filed. 
It is insisted, that the omission to file an account of items, cannot vitiate 
the pleadings. A general demurrer could not be sustained to a declaration upon 
an open account, because an account of items is not filed. It could not even 
be assigned as a cause for speciaL demurrer, because it is no part of the 
pleadings. It is merely intended as notice to the opposite party, which he may 
waive, and which by the express words of the statute, need not be filed where 
the item is so particularly described in the declaration as to give notice to 
the opposite party. Its effect is only to prevent the plaintiff from proving 
the items, if the defendant objects to the proof, for the want of the notice 
of an account of items filed. Certainly this court would not reverse a 
judgment and verdict upon a declaration containing only one count, upon an 
open account, because the record did not show an account of items filed, when 
the defendant had pleaded to the country, and waived the want of an account of 
items, taking no exceptions to the admission of proofs of the account. Much 
less, could they reverse a judgment upon a declaration, upon an account stated 
under such circumstances, as unquestionably the plaintiff is not required to 
prove items, in an action upon a stated account. A stated account does not 
prove itself like a note, but requires the proof of witnesses, and surely the 
clerk is not warranted to receive proof of witnesses in the place of a jury.

In conclusion. If the judgment in this case had been upon the count on the 
note alone and the naked question had been presented, whether it was not 
erroneous, because the other counts were not discontinued, the court, under 
the practice which has existed in this state, might, perhaps, have considered 
the taking a judgment by default final on the first count alone, as a legal 
discontinuance of the other counts. The common counts must be disposed of in 
some way. They must either pass into a judgment, or be continued, or be 
discontinued. A judgment cannot be taken upon one part of the plaintiff’s 
declaration at one term, and upon another part, at another term. The whole 
cause must be disposed of by one judgment. The rule is familiar to the court, 
in suits against joint defendants, where process is not served on one of the 
defendants. Judgment cannot be taken against one of the joint defendants, and 
the cause continued, as to the other joint defendant, until he is brought in 
at some future term. The common counts, therefore, must be discontinued, if 
judgment is taken upon the count on the note. According to all the 
authorities, that discontinuance must appear by the entry of a nolle prosequi 
upon the record, and it is going beyond the authorities to consider the taking 
a judgment tipon one count as a discontinuance by operation of law of the 
others. But here, the judgment is not taken on the count upon the note alone. 
It is a general judgment on all the counts in the declaration. It is as much a 
judgment, and as certainly a judgment upon the account stated, and on the 
money counts, as upon the first count. The presumptions which support the 
judgment, and which arise with certainty from it, are, that the clerk received 
evidence of witnesses to support the counts. This he was not warranted to do. 
The judgment is, therefore, erroneous.

He cited Rev. Code, 102, 4; Wendell, 410; 1 Saund. Rep. 207, a. 6; Opinion 
Book, 106, 1O7; 3 Saunders, 171 (a); 6 Cowen, 4O; 1 Alabama Rep.

Hughes, for defendant.

The first error assigned by the plaintiff in error is,

The action ought to have been a joint action against all the parties, drawer 
and endorsers, to the note sued on, instead of an action against Soria alone.

To this we say, that there was a judgment by default, which was final on the 
last day of the term, and if the objection would have been a good one at any 
stage of the proceedings, it is too late after judgment by default. The 
objection is cured by the statute of jeofails. Rev. Code, 124, 5, sect. 91.

The words of the statute applicable to this question are: "Neither shall any 
judgment, entered by nil dicit or non sum informatus, be reversed, nor a 
judgment after inquiry of damages be stayed or reversed, for any omission or 
fault which would not have been a good cause to stay or reverse the judgment 
if there had been a verdict." And the same section, in a previous paragraph, 
declares that, "no judgment, after the verdict of twelve men, shall be stayed 
or reversed for any defect, &c., or for any other defect whatsoever, in the 
declaration or pleading, whether of form or of substance, which might have 
been taken advantage of by demurrer, and which shall not have been so taken 
advantage of." These provisions would seem to be broad enough to cover all 
cases, and embrace the present judgment.

But it has been said, that in this case there is a judgment by default, which 
is not embraced in the terms nil dicit, or non sum informatus, and that 
therefore the defect is not cured by the statute. We admit that there is not a 
judgment by non sum informatus, but there is in fact and substance a judgment 
by nil dicit. This will be made manifest by a recurrence to the English 
authorities.

The statute 4 Anne, c. 16, provides "That all the statutes of jeofails shall 
be extended to judgments which shall be entered upon confession, nil dicit, or 
non sum informatus." 1 Bacon’s Abr. tit. Amendment and Jeofails, (B.) 201.

The author, immediately after transcribing the statute, goes on to say: "In 
the construction of this statute it has been adjudged, that it extends to 
protect judgments by default," &c., and in support of the doctrine laid down 
by him he refers to 1 Strange, 78; 2 Strange, 933; 2 Burr. 899. By a reference 
to these cases it wiLl be seen that the judgments in those cases were cases of 
judgment by nil dicit, but the court in each of the cases speak of them, as 
judgments by default. From this we draw the conclusion either that the term 
judgment by default is improperly used and confounded with the term nil dicit, 
or that there is no distinction between them. The latter is the truth; a 
judgment by default or nil dicit; so where the defendant puts in no plea at 
all to the plaintiff’s declaration. Jacob’s Law Dict. tit. Judgment, 552. By 
the English practice, in actions at law there could be no judgment until there 
was an appearance. 1 Sellon’s Practice, 90, sect. 3.

The reason of this was founded on the mode of obtaining jurisdiction 
originally by the courts. The party was first to be taken upon a plea of 
trespass, ac etiam, at the suit of A. B. &c., and when brought in or compelled 
to give bail, he was then in the custody of the marshal and might be declared 
against at the suit of A. B. under the ac etiam, and after declaration being 
in court it was a default to fail to plead within the time prescribed by the 
rules of the court, and a judgment was taken against him by nil dicit, or 
because he said nothing. Sellon’s Practice, 33, 35, 61.

In our courts the proceeding is not like that just mentioned, but the result 
is the same. The party is served with process, and upon such service is bound 
to be in court and plead, and on failure, judgment is rendered against him by 
default. The form of the judgment is, "and the defendant though solemnly 
called came not, but makes default. It is therefore considered by the court," 
&c. Makes default? In what manner? He has been served with process, and is 
bound to appear but does not. He says nothing in bar of the plaintiff's cause 
of action. This analysis of the judgment shows most conclusively what is meant 
by the term judgment by default. It is not that it is a term distinct and 
different from nil dicit, but is a circumstance which precedes and authorises 
the judgment by nil dicit. The party says nothing when the law, by the service 
of process, has afforded him an opportunity, and therefore there is judgment 
against him, and this is called a judgment by nil dicit, and it is sometimes 
termed a judgment by default, because it is preceded by a default or failure 
in the defendant to do that, which by law he might have done. And in this 
sense the term is used in the cases referred to by Bacon in 1 and 2 Strange, 
and in 2 Burr.

The using the term "by default," in the 67th section of the circuit court law, 
Rev. Code, p. 120, in addition to the term nil dicit, can make no difference, 
cannot change the matter. If the term judgment by default is included in the 
term judgment by nil dicit, then the using the former will be surplusage, and 
the provision of the 67th section is not strengthened by its use, or the 91st 
sect. weakened by its omission.

The second error assigned is, judgment rendered by default upon a special 
count, without discontinuance upon the money counts. This we will not discuss. 
Gridley v. Brigs, Lacoste & Co., 2 Howard’s Rep. 83O.

Mr. Justice PRAY delivered the opinion of the court.

The first error assigned is, that the action ought to have been a joint action 
against all the endorsers mentioned in the declaration.

The question here presented was fully argued and adjudged at the present term, 
in the case of J. H. Lyle v. The Planters’ Bank, and we refer to the reasoning 
in that case as decisive of the present question. In that case it was decided 
that a suit against a less number than the whole, was well brought.

The second question is precisely the same as that decided in the case of 
Gridley v. Brigs, Lacoste & Co., at the last January term.

The action here was a case upon a promissory note, in the court below. The 
declaration contained a special count on the note, the usual money counts, 
with an insimul computassent. No bill of particulars was filed with this 
declaration, except what refers to the promissory note declared on.

Judgment by deficit was rendered, without a discontinuance of the common 
counts, and damages assessed by the clerk. This assessment is complained of; 
and the cause brought before us on a writ of error.

It was contended for the plaintiff in error, that each common count contained 
at 1east one item so plainly and particularly described therein, as to entitle 
the plaintiff below to give evidence under it. 

As an illustration, it was said that the count for money loaned states, "That 
on the first day of March, 1838, at the county aforesaid, the defendants were 
indebted to the plaintiff in the furthur sum of 8000 dollars, &c., for so much 
money before that time lent and advanced, &c. 

It was urged in argument, that under this statement in the count, a single 
loan made anterior to the time stated in the count, for the sum of 8000 
dollars, could be legally proved without any bill of particulars.

This reasoning we deem erroneous, as applicable to the count under 
consideration, and not less so in relation to all the common counts. The 
account required by the statute to be filed with the declaration of the 
plaintiff, must state distinctly the several items of his claim against the 
defendant. And here we regard the particular date of the item, as a necessary 
part of that distinctness of item, which the statute requires.

First. Because it is necessary to enable the defendants to prepare their 
defence, which was undoubtedly one of the primary objects of the legislature 
in passing the act.

Secondly. That the account should remain on the records of the court, as a 
protection for the defendant against any subsequent action for the same cause.

A general statement of account filed with the count for money loaned, "that 
the defendant was, before a particular day mentioned in the count, indebted to 
the plaintiff in 8000 dollars for money before that time loaned," surely, in 
our judgment, would not be such an account as the statute requires. There is 
nothing to specify the period of the loan or loans; nor whether these were one 
or more. If this position be true, and we are satisfied it is so, then no 
evidence could be given under the same statement in a common count.

Under the reason of the statute, upon which we have before commented, there is 
no ground to distinguish the case of an insimul computassent from any of the 
other common counts; the items of the account adjusted, must be filed with the 
declaration, or evidence of them will be excluded; and proof of an 
acknowledgment of all the items which made up an account stated, must be 
shown, or something tantamount thereto.

We are satisfied of the correctness of the opinion of the court in the case of 
Gridley v. Brigs, Lacoste & Co., and shall decline, under our present 
impressions, to disturb it.

The judgment below must be affirmed with damages and costs.

Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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