delivered the opinion of the Court.
Thе declaration in this case, alleges that the plaintiff sues the defendant for two thousand dollars, as damages for wrongfully taking the following, goods and chattels, 'the property of the plaintiff, viz.: “Onе mare, seven mules and one bridle.” Judgment by default was taken, a writ of inquiry awarded, and at the September Term, 1869, a jury was impaneled and sworn well and truly to inquire and ascertain the damages. They found fоr the plaintiff, and assessed his damages at five cents. He obtained a rule for a new trial, which was discharged, and thereupon he tendered his bill of exceptions, which was
It appears from the evidence that two persons, who are not parties to this suit, tоok from the plaintiff’s farm, in his absence and without his consent, one fine buggy mare, worth $250, five mules, each worth $150, and two mules, each worth $100; but there was no evidence to show that defendant was presеnt at the taking of the property, or had any thing to do with it. The plaintiff’s counsel asked the Court to charge the jury that the judgment by default admitted the plaintiff’s right of action, and that the plaintiff was entitled to recover the full amount of damages shown by the evidence. The Court charged the jury “that the judgment by default settled the plaintiff’s right to recover some damages; that the amount of damages the plаintiff should recover was a question of fact purely for the jury; that they were the exclusive judges of the amount of damages that could be allowed from the proof, and could allow any sum they might agree upon, from one cent to the full amount claimed in the declaration, but could not exceed the amount claimed iu the declaration; that the usual amount of damages in such cases would be, or was, the value of the stock and property which the proof showed the defendant had taken, or caused to be taken, at the time it was taken; and that after the jury fоund that amount, they might allow interest or not, in their discretion, on that amount; that it was for the jury to say, from the proof, what amount of damages the plaintiff should recover.” This charge was not in confоrmity to the instructions asked in behalf of the plaintiff; and the
Where the defendant fails to appear and demur, or plead, within the prescribed time, judgment by default may be taken, under the Code, section 4239. And, by section 2975, it is provided thаt, “Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which • he might have heretofore recovered in any form of action, for ■ the same cause.” The declaration charges the defendant with wrongfully taking the goods and chattels mentioned in it; and there can be no question that, if the dеfendant had pleaded not guilty, and the jury had found the plea against him, or, in other words, that he was guilty of wrongfully taking the property, the jury would have been instructed, under the form of action in use before the Code, to assess damages to the extent, at least, of the value of the property proved. In 1 Greenleaf's Evidence, § 27, it is said that, “If a material averment, well pleaded, is pаssed over by the adverse party without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby conclusively admitted.” And we hold that, where there is a failure to рlead, and a judgment by default at law, the effect of the judgment is the same as that of a judgment pro eonfesso in equity, which admits the allegations in the bill. See Code, 4371; Stone v. Duncan,
In England, frоm whence we derive the common law, and a large part of our pleadings and practice before the Code, a judgment by default was regarded as an intei’locutory judgment, and the amount of the damage sustained by the plaintiff was ascertained, either by reference to the Master in the King’s Bench, or prothono-taries in the Common Pleas, or by writ of inquiry. In general, a writ of inquiry was awarded; but as it was a mere inquest of office, to inform the conscience of the Court, the Court itself might assess the damages, with the assent of the plaintiff. 10 Petersdorff’s Abr., 440. So, also, the damages cоuld be ascertained by the Sheriff, the definition being that “a writ of inquiry is a judicial writ, issuing out of the Court where the action is brought, and directed to the Sheriff of the county where the venue is laid, setting forth the proсeedings which have been had in the cause, and that the plaintiff ought to recover his damages by occasion of the premises. But because it -is not known what damages he hath sustained by oсcasion thereof, the Sheriff is commanded that, by the oaths of twelve. honest and lawful men of his county, he diligently inquire the same, and return the inquisition into court.” Ibid, 448. The
It has been сorrectly said that a judgment goes by default, properly speaking, whenever, between the commencement of the suit and its anticipated decision in court, either party omits to pursuе, in the regular method, the ordinary measures of prosecution or defense. Hence, judgment by default, when it' goes against the defendant, is an implied admission of the charges advanced; when it gоes against the plaintiff it is an admission that he cannot support those charges. 7 lb., 475. And, so conclusive are these admissions, that where the plaintiffs declared, upon a sale of coffеe, at so much per cwt., which the defendant was to take away by such a time, or answer in damages, and there was judgment by default, it was held, on executing the writ of inquiry, that the defendant should not be let in to give evidence of fraud, on the side of the plaintiffs, at the sale, because he had admitted the contract to be as the plaintiffs had declared, by suffering judgment by default, instead of pleаding non-assumpsit. East India Co. v. Glover, 1 Stra., 612; 10 Pet. Abr., 456. So, in assumpsit upon a promissory note, there was judgment by default; and, on executing a writ of inquiry, the plaintiff did not produce the subscribing witness, but offered other evidence of its being defendant’s hand, and the Court held this was sufficient, for the note, being set out in the declaration, is admitted, and the
The case of Turner v. Carter and Pulliam, 1 Plead, 525, is not in conflict with the authorities cited. In that case, the defendant had filed an informal plea of abatement, to which a demurrer was sustained, and had then moved for leave tо plead over, and accompanied his motion with pleas and a strong affidavit, showing a meritorious defense; but his motion was refused, and it was held that, Ho a limited extent/ he had the right to be heard upon the inquisition of damages. It was said that the defendant was no further compromitted by the judgment by default than to preclude him from
Reverse the judgment, and remand the cause.