Sweet v. McDaniels , 39 Vt. 272 ( 1867 )

The opinion of the court was delivered by

Barrett, J.

The case has been treated by counsel for the defendant in the argument the same as if the declaration had counted specially and exclusively upon the notes set forth in the specification. And no question has been made by him as to the legal propriety of entering judgment in pursuance of the rules and practice of the County court.

It is insisted by him that the defendant had the right to show, as affecting the amount for which the judgment should be entered, that the notes were void by reason of haying been given for money lost in gambling, and so constituted no cause of action, and therefore the plaintiff was entitled to a judgment for only nominal damages. The execution and delivery of the notes not being questioned, they, of themselves, were evidence of an indebtedness to the amount for which they were given ; and, if the case had stood for trial on the general issue, they would have been plenary proof for the plaintiff to establish his right to recover the amount specified in them according to their tenor and legal effect; and when produced in evidence, the burden would have been cast on the defendant of encountering them by affirmative defence going to the cause of action, or he would be subjected to a judgment for the full amount, to be ascertained by computation. The case of Briggs v. Gleason, 32 Vt. 472, states in general terms the law and rule as to the effect of a judgment entered as was done in this ease. It is understood that, where the defendant submits to a judgment, as in this 'case, or on default, or nil dicit, in suit brought upon an instrument which, as a contract, shows both the cause of action and the measure of the plaintiff’s right specifically, the production of the instrument constitutes all that the plaintiff is bound to do in order to entitle him to damages according to that measure ; and they are to be ascertained by mere computation. It would present a new feature of practice, if, on the question of damages in this case, the defendant should be allowed to open matters affecting the validity of the contract, or to show some supervening matter of defence. It would require us to ignore the principle, and the practice in several cases in this state, as well as to repudiate a long course of decisions, in England, and in other states of this country. See Webb v. Webb, 16 Vt. 636 ; Hyde v. Moffat, ib. 271; Bradley v. Chamberlain, 31 Vt. 468.

Green v. House, 3 T. R. 301, was an action on a bill of exchange against the acceptor, who suffered judgment to go by default; and, at the execution of the writ of inquiry, the bill was produced ; but it did not appear to have been accepted. Upon a rule to show cause, etc., the court state the rule of law on the subject so clearly, that we deem it well to repeat it here : “ When a defendant suffers judg-meat to go by default, be admits the cause of action ; and, thus far, an action on a bill of exchange, and an action for money had and received are alike ; but beyond that there is no similarity. For in the latter the defendant only admits something to be due ; and as the demand is uncertain the plaintiff must prove the debt before the jury (of inquest.) But in the former, as the bill of exchange is set out on the record, the defendant, by suffering judgment to go by default, admits that he is liable to the amount of it; here then the defendant has admitted that he did accept the particular bill of exchange set out in the declaration ; and the only reason for producing it to the jury, on executing the writ of inquiry, is to see whether or not any part of it has been paid.” Numerous cases sh’ow that in King’s Bench and Common Pleas, in England, in action on notes and bills of exchange, upon default, no writ of inquiry is necessary ; but reference is made directly to the prothonotary or other proper officer to calculate the interest and find the amount due. Smith v. Chester, 1 T. R. 654; 1 H. Blackstone, Rep. 852 ; ib. 529 ; ib. 541, and other cases passim.

The judgment is affirmed,