It does not appear, from the record, what was the evidence before the judge, upon which the plaintiff had his damages assessed. But we must presume that the damages were assessed for the breach of the contract declared on.
If, after the default of the defendant, the plaintiff shall move to have jury to inquire into the damages at the bar, [ *449 ] * pursuant to the provision of the statute 1784, c. 28, § 7 ; or if, without such motion, the judge shall assess the damages ; and in either case, the judge shall admit illegal evidence on the question of damages, the party aggrieved may file his exceptions to the admission, according to the proceedings in our courts; and the judge ought to allow the exceptions, that the party may have the opinion of the whole Court thereon.
In the case before us, there appears to be no error on the record For, although such a note as is described in the assignment of errors was filed in the case, yet we cannot take notice of it as a part of the record, any more than we could of a deposition, or other piece of evidence filed. The judgment must therefore be affirmed, with costs for the defendant in error.