#### Wm. C. Greenup and Clement C. Conway, Plaintiffs in Error, v. Philander Woodworth, Defendant in Error.

ERROR TO RANDOLPH.

In an action on a judgment against administrators, suggesting a devastavit, a judgment by default admits the truth of the allegations in the declaration, and a jury of inquiry is not necessary to ascertain the damages.

Opinion of the Court by

Chief Justice Wilson.

This is an action of debt against the plaintiffs in error, upon a previous judgment against them as administrators. The declaration sets forth the previous judgment against them, and alleges that goods and chattels to the amount of said judgment came to their hands to be administered, and that they wasted them. Judgment was suffered to go by default, the court ascertained *233the amount of interest, and rendered judgment for the principal, interest and costs. The rendition of this judgment is assigned for error. The plaintiff’s counsel contends, that a jury ought to have been impanneled to ascertain the amount of assets that came to their hands, and also the fact of a devastavit. These are certainly material allegations in the defendant’s declaration, and if the plaintiffs here, had, by their pleadings, traversed them, the intervention of a jury would have been necessary. This, however, they have not done. The judgment by default, then, admits their truth, and must conclude them. Upon a judgment by default, in an action of assumpsit, or covenant, it is usually necessary to have a jury to inquire of damages, but it is never necessary upon a default in an action of debt, unless required by the plaintiff. In this form of action, the plaintiff recovers the sum in numero, and it is the constant practice of the court to tax the damages occasioned by the detention, as well as the costs of suit. 6 Johns. Rep., 287. The court is therefore of opinion that there ivas no error in the court below, and that the judgment be affirmed with costs. (1)

Yowng, for plaintiffs in error.

Baker, for defendant in error.

Judgment affirmed.

(1)

See note to Biggs et al. v. Postlewait et al., ante, p. 198.