Metcalfe v. Battaile

ROANE, Judge.* The court is of opinion, that if the writing on which the action in this case was founded, could be consid [888] ered as a note or writing for the payment of money within the meaning of the Act of 1804, c. 8, (g) no objection would lie to the judgment before us, on the ground that it included interest when none is demanded in the declaration, (as was decided by this court in the cases of Wallace v. Baker, (h) and Baird v. Peter, (i) since if the judgment were rightly entered, the clerk, under the act, would have included interest also in the execution, which therefore would produce the same result. But the court is, at the same time, of opinion, that this writing is not of that character, and that, therefore, ^neither the interest, nor a final judgment for the principal sum could be given upon it, without the intervention of a jury. It is not a writing for the payment of money absolutely, but a collateral contract to pay it under certain circumstances. The opinion of this court discriminating between these two classes of contracts has been heretofore given, and particularly in the cases of Ruffin v. Call, (k) and Henderson v. Hebburn, (l) and by that opinion, this writing falls within the latter class of contracts. The court is therefore of opinion, that the judgment of the Superior court be affirmed, by which the interest and damages will be hereafter assessed under a writ of enquiry. It is the right of the appellee to reverse this erroneous proceeding altogether, and thus be let into his objections on the merits, instead of being subjected to pay the principal sum, under the consent of the appellant. Footnotes [*] Brooke absent. [g] (g) See 1 New Code, 508, § 79. [h] (h) 2 Munf. 834. [i] (i) 4 Munf. 76. [k] (k) 2 Wash. 181. [l] (l) 2 Call 232.