Madison County MsArchives Court.....Grigsby, 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

Grigsby v. Ford et al.

pages 184-190

The damages which are allowed upon protested inland bills of exchange are as 
fixed in amount, as much an incident to the debt and as readily calculated and 
assessed by the clerk as the interest, and it is the province of the clerk to 
assess them, without the intervention of a jury upon a judgment of nil dicit. 
In such a case a judgment by nil dicit is equivalent to a verdict, and finds 
all the facts to be true as stated in the declaration.

The fact, that an inland bill was not protested at the place, where on its 
face, it was made payable, cannot be taken advantage of, after judgment by nil 
dicit. The defect is cured by the statute of jeofails.

ERROR to the circuit court of Madison county.

This was an action of assumpsit upon three bills of exchange, drawn by J. G. 
Ott, at Vicksburg, in this state, on John Steady, at Livingston, also in this 
state, in favor of the plaintiff in error, for the sum of 1,508 dollars, 49 
cents each. They were endorsed by the plaintiff; and likewise, by John Long, 
and accepted by Steady, payable at New Orleans. The declaration alleges, that 
at maturity, the bills were regularly protested for non-payment at New 
Orleans, where, by the terms of the acceptance, they were made payable, and 
due notice given to the endorser.

At the return term of the writ, the plaintiff in error filed the plea of non 
assumpsit. The cause was continued, and at the succeeding term he withdrew the 
plea from the record, and suffered judgment to be entered against him upon nil 
dicit. The clerk entered up the judgment for the principal sum due upon the 
bills with interest, and five per cent, damages, allowed upon protested inland 
bills.

M. and G. Calhoun, for plaintiff in error.

Harrison, contra.

It is in substance assigned as error, that the court rendered judgment not 
only for the principal and interest, but for ten per cent. upon the principal 
in addition, and that this judgment was rendered without the intervention of a 
jury. Before, however, I proceed to notice the assignment of errors, I will 
remark, that the judgment as rendered, was for an amount, and upon terms 
agreed upon by the parties, as I think will appear from an examination of the 
record, and especially of the judgment itself. And if the judgment as rendered 
was for an amount, and upon terms agreed upon by the parties, it was then, for 
every purpose of justice, a judgment by confession. And if a judgment by 
confession, it is, under our statute, equivalent to a release of errors.

The court will observe, that the judgment as rendered, is not such as is 
usually rendered, or as the plaintiffs were entitled to in a mere case of 
defau1t. The plaintiff in a mere judgment by default, is entitled to execution 
immediately upon the rendition of such judgment. But in the present case, 
judgment was entered with a stay of execution for six months.

The plea filed as above, had given to the defendant time for six months. The 
plea was then withdrawn, and upon the withdrawal, the above judgment was 
rendered, giving to him the further time of six months. Now, it cannot be 
contended, that the court had not the power to render such a judgment upon a 
proper state of facts. Consent of the parties would authorise the court to 
pronounce such a judgment. No other state of facts can be imagined, that would 
confer such power upon the court. The court having exercised such power, it 
must be presumed, in the absence of proof to the contrary, that it was 
properly exercised—or in other words, that the court pronounced this judgment 
for an amount, and upon terms agreed upon by the parties. The law presumes 
every decision and order of every court, in a matter of which it has 
jurisdiction, to have been correctly given and made upon a proper state of 
facts, until the contrary is made manifest by proof. Apply this well-settled 
principle to the present case, and every difficulty is at once removed; 
because, the court having, as before observed, power to render such a judgment 
upon a particular state of facts existing before it, (to wit, the consent of 
the parties,) and having rendered such judgment, the law necessarily presumes, 
in the absence of proof to the contrary, that such a state of facts actually 
existed, upon which, alone the court would be authorised to pronounce such 
judgment. It, therefore, seems to me, that the defendant below consented in 
court to this judgment, upon condition that the plaintiffs would stay 
execution thereon for six months thereafter. And if so, it is substantially a 
judgment by confession, and amounts, therefore, to a release of errors.

But I will now notice the errors assigned. The judgment is for 5127 dollars 
and 5 cents in damages—and the record does not any where show what items 
entered into, or form parts of this aggregate sum. So that this error results 
necessarily in this, to wit; that the judgment of the court below was 
excessive. Now this court will not, under its 22d rule, regard any such 
assignment of error, unless a true calculation be presented in words and 
figures, with a certificate by some counsellor not interested in the cause, 
that the calculation is correct. In other words, I understand this rule to be, 
that no such assignment of errors will be noticed, unless it be accompanied at 
the time with such calculation—for, in the absence of such calculation, this 
court will not regard the error. And the court will, of course, act upon the 
whole record, as though such assignment had not been made, unless accompanied 
by such calculation. Now, these errors were assigned on the second day of the 
December term, and the calculation exhibited in support of this "error," bears 
date in January, at the term after that at which the errors were assigned. 
Now, if this practice were allowed, the plaintiff would be at liberty to 
assign two sets of errors—one at the first, and one at the second term—
because, this error, as assigned at the December term, amounted to nothing. It 
would not have been regarded by the court. But now, by the calculation 
presented at the January term, he attempts to bring this error to the notice 
of the court—or in other words, to make a new assignment of errors—which, as I 
understand, is also forbidden by the rules of this court.

But again. The calculation presented by the plaintiff and signed by George 
Work, Esq., shows upon its face, that the court did not render judgment for 
ten per cent. damages, upon the amount of the bills.

According to the calculation of Mr. Work, the principal and interest alone, at 
the rendition of the judgment, amounted to
$4,962.74

Ten per cent. upon $4,525.47, would be 452.54
___________

5415.28


Whereas the judgment was for 5127.05
___________

388.23


Thus, it is manifest from that calculation, that the error assigned is not 
supported by the facts.

But the same assignment of errors admits indirectly, that the plaintiffs below 
were entitled to damages at the rate of five per cent. upon the amount. And I 
therefore take it for granted, that the allowance of five per cent, is not 
assigned as error. Though the plaintiff seems to take the position that the 
court below had no right to render judgment for the statutory damages, even of 
five per cent. without the intervention of a jury. I will briefly notice this, 
though it is not directly assigned as error.

It is the province of the jury to ascertain facts, and of the court to 
pronounce the law upon the facts when ascertained. Whenever the court can 
ascertain the facts without the aid of a jury, no jury is necessary, and the 
court may proceed to pronounce its judgment without the aid of a jury. Now the 
right of the court to render judgment for the principal and interest due on a 
bill of exchange, without the intervention of a jury where there is no 
defence, cannot be questioned; or in other words, the court can, of itself, 
ascertain the fact that so much is due to the plaintiffs upon a bill of 
exchange, and having ascertained that fact without a jury, may pronounce 
judgment accordingly. But upon the fact so ascertained, the statute in the 
Revised Code, entitled the plaintiffs to damages of ten or five per cent., 
according to the character of the bill—all bills of exchange being then 
chargeable with damages to at least five per cent. Now if this had been a 
foreign bill, yet the defendant below could not object that judgment was 
rendered against him for five per cent, on the amount; because, such judgment 
would not have been to his prejudice; it being well settled, that a plaintiff 
may safely take his judgment for less, though he cannot for more than he is 
entitled to. Nor has he any more reason to complain that, being a domestic 
bill, judgment was pronounced for the five per cent.;—because, such was then 
the law. Therefore, whether the bills in question were foreign or domestic, it 
is clearly no error that judgment was rendered for five per cent. upon the 
amount. Where then was the use of a jury? A jury would have found the bills to 
be either foreign or domestic. If domestic, their verdict would have been the 
same in amount with the present judgment, for such was then the law. If 
foreign, the plaintiffs might still have taken a verdict or judgment with 
perfect safety for less than they were entitled to. And it is clear from the 
calculation, that the judgment was not for as much as the plaintiffs below had 
right to—the judgment being for 5,127 dollars, 5 cents.

The principal and interest alone being 4,962.74


Five per cent. on $4,525.47, being 226.25

___________

Correct amount $5,188.99


Being greater by about 61 dollars, than the actual amount of judgment. From 
this it is manifest, that the plaintiffs below alone have a right to complain 
of the judgment—it being in fact, for less than it ought to have been by about 
61 dollars.

The other errors assigned are not worthy of attention. The withdrawal of the 
plea being an admission of the plaintiff’s right to a judgment—and, as the 
bills show, upon their face, the amount due the plaintiffs, the court could 
not do otherwise than give him judgment for their amount.

Mr. Justice TROTTER delivered the opinion of the court.

There are two errors assigned.

1. That the clerk had no authority to assess the damages allowed on the bill.

2. That they should have been protested at Livingston, the place where, upon 
their face, they were payable.

By the 67th sect. of the circuit court law, Rev. Code, 120, it is provided, 
that all judgments on demurrer, confession, non sum informatus, nil dicit or 
by default, in actions of debt for a sum certain, and in actions founded on 
any instrument of writing, ascertaining the sum due and not set aside, &c., 
shall be final on the last day of the term, and executions may issue thereon 
for the amount of such judgments with legal interest, by way of damages, to be 
calculated by the clerk of such court. The clerk is thus expressly authorised 
to assess the damages allowed by way of interest for the non-payment of the 
money sued for; and the reason for this authority is founded in obvious 
convenience to the parties. It is, moreover, an authority which can, with 
perfect safety, be entrusted to that officer of the court. The interest is an 
incident of the debt, which it follows with certainty, and can be ascertained 
as readily almost as the principal of the debt. It was, therefore, unnecessary 
to call in the aid of a jury to inform the court what damages, by way of 
interest, the judgment creditor had sustained; and this duty has been wisely 
left to the clerk, who, in this respect, acts like a master in chancery. But 
the damages which are allowed upon protested inland bills of exchange are as 
fixed in amount, as much an incident to the debt, and as readily calculated 
and assessed by the clerk as the interest. They form a part of the damages to 
which the holder of the bills is entitled, as well as the legal interest; and 
where the sum on which they are to be calculated, is certain, and ascertained 
by the bill, there is no just reason why the clerk should not assess them. 
And, accordingly, this practice has been uniform in this state, as far as we 
are informed. The clerk has invariably calculated them. In this case, the 
judgment on nil dicit is equivalent to a verdict, and finds all the facts to 
be true as stated in the declaration. It affords proof upon the record of the 
making of the bills, of their acceptance, endorsement, protest for non-payment 
and notice to the plaintiff in error. What then would have been the subjects 
of inquiry by a jury? The amount of the bills? That was ascertained hy the 
bills themselves. The liability of the endorser? That was fixed by the 
judgment. The character of the bills, whether foreign or inland? The pleadings 
show that they were drawn in the state, upon a resident of the state, payable 
in the state, and the judgment finds the truth of these allegations, and 
establishes their character as inland bills. It would, therefore, have been a 
very idle ceremony in the court to have sent this case to a jury. It is their 
sole province to find the facts. They were already ascertained here, and the 
law fixed the damages.

As to the second error, we think the objection, if good, comes too late. The 
facts on which it is rested, sufficiently appear in the declaration; and the 
defendant should, therefore, have demurred for that cause, if he believed it 
fatal to the action. The act of jeofails places judgment upon nil dicit, on a 
footing with those after verdict, and provides that the same shall not be 
reversed for any defect whatsoever, in the declaration or pleading whether of 
form or of substance which might have been taken advantage of by demurrer, &c. 

Let the judgment be affirmed with damages, &c. 


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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