#### HOKE’S EXR'S v. OBADIAH EDWARDS AND OTHERS.

Upon a default or a *nildicitt*on an action of debt, in a Justice’s judgment, the plaintiff is entitled to a final judgment, at the time when the default is made, and need not execute an inquiry before a jury.

Scire Facias to revive a judgment, tried before his Honor Judge Caldwell, at the Fall Term, 1853, of Yancey Superior Court.

At the January Term, 1844, of Yancey County Court, % judgment was rendered by default, in favor of John Hoke, for the sum of fill).29, with interest, against defendants Obadiah Edwards, William Edwards, Samuel Fleming and A. Hampton, on an appeal from a magistrate’s judgment and execution issued thereon, returnable to March term following, which was returned “not collected,” upon which an *ali s jt■ fa.*issued to the next term, (July 1844,) returned in like manner “not collected.”

At the October term, *18*9, “*Ordered, That the clerk cuter judgment in full, according to the papers upon which the appeal was takenalso, “ Ordered, That a *sei. fa.*issue in favor of the executors of John Hoke, (he having died in the mean time,) for the defendants to show cause why execution should not is-buc upon the above mentioned judgment, on which as *ci. fa.*was issued accordingly, returnable to June term 1850, to which tho defendants at that term pleaded *nul teil,*record, payment, *533Statute of Limitations. And at the same term appears tliis record, “to be certified to the Superior Court for trial.” The cause was docketed at the Fall Term 1850, of Yancey Superior Court, and thence regularly continued until Fall Term 1853, when the cause was taken up and considered, and the following entry ■ of record appears: “Abated as to Samuel Fleming. Upon inspection of the record by the Court now here, it is considered by the said Court, that there is such a record, and it is further considered by the said Court, that the said plaintiffs do have execution against the said defendants, for the sum of $19.29 cents principal $11.28 cents interest, and their costs, to be taxed by the clerk.”

The only question raised in the case is, whether the plaintiffs shall have an execution upon the judgment in the pleadings mentioned, it having been entered without a writ of enquiry.

Appeal to the Supx-eme Court.

*Avert/,*for plaintiff.

*JST. W. Woodfin,*for defendants.

Pearson, J.

According to the English practice, no judgment could be entered, unless the defendant appeared and made de-fence. If he appeared and failed to put in his pica, there was judgment upon *nil*dicit, either final ; or interlocutory, with a writ of enquiry: depending upon whether the action was in debt for a specific tiling, or whether it ¿cundí d in damages. If the deioi.dant did not appear and make defence, after being served with *mesne*process, the plaintiff could only run the process to *Outlaw)'!/,*or, if the *mesne*process was a *capias respondendum,*charge the sheriff and fix the bail below.

Tuero were many inconveniences attending this practice, which the act of 1777 was intended to remedy. Rev. Slat. oh. 81, s. G2: “The defendant shall appear and plead, or dcmuv, at the same term to which the writ is icturnablo; otherwise, the plaintiff may have judgment by default, which, in actions of debt, shall be *final, be.,*and, in all other actions, not specially *534provided for, where the recovery shall bo in damages, a writ of enquiry shall be executed at the next succeeding term.” The 95th and 9Gth sections of the same chapter, makes provision in regard to interest. So, if the action had commenced by writ, upon its being returned “ executed,” it would have been regular at the next term to enter final judgment, according to the for* mor judgment, if the defendant had failed to appear and enter his pleas. Of course it was regular to do so in the present case, which was commenced before a single Justice, where the defendants appeared, made defence, and appealed; which appeal stood for trial at the next term of the County Court. Rev. Stat. ch. 62, sec. 24. By the 12th section of the same chapter, it is provided, “ Upon a. warrant on a former judgment, such judgment shall be evidence of the debt, subject to such deductions as the defendant may make appear to have been paid.” The defendant appeared and made defence before the justice, and took an appeal. So, even, according to the English practice, he was in Court, upon his default m not entering his pleas, it was according to the course of the Court, to enter a final judgment, without the aid of the act of 1777.

Judgment affirmed.