#### PARKER & GATLING v. W. H. SMITH.

A judgment by default, in an action for goods sold and delivered, operates as an admission by tbe defendant of a cause of action, and that tli plaintiff is entitled to nominal damages; but it does not relieve the plaintiff from the necessity of proving the delivery of the things alie ged to have been sold and delivered, and their value.

'Iherefore, in such case the defendant may prove that such things never were delivered.

(Garrard v. Dollar, 4 Jon., 175, cited and approved.)

Assumpsit, for goods sold and delivered, tried before Watts,at Fall Term 1869 of Halifax: Court.

Judgment bad been, taken, by default against tbe defendant, and upon tbe inquiry by tbe jury as to tbe damages, tbe defendant offered to prove that none of tbe goods charged bad ever been delivered.

Tbe plaintiffs excepted.

His Honor being of tbe opinion, that, although tbe defendant could contest tbe amount of damages, be was estopped by tbe judgment, from disputing that tbe articles bad been ■dehvered, excluded tbe evidence.

Yerdict for tbe plaintiffs, Rule &c._' Judgment and Appeal.

Barnes and Walter Clarice, for tbe appellant.

Boyers Sc Batchelor, contra.

Dick, J.

When a defendant suffers a judgment to go by ■default, be admits tbe cause of action. If tbe action is on a single bond, a covenant for tbe payment of money, bill of •exchange, promissory note, or a signed account, tbe judgment is final, and tbe Clerk ascertains tbe interest due by law, without a writ of inquiry: Rev. Code, cb. 31,sec. 91.

When tbe action sounds in damages, as in assumpsit, covenant, trespass, &o., a judgment by default is only interlocutory, and tbe amount of damages must be ascertained by a jury, upon a writ of inquiry: 1 Tidd. Pr., 573, 580.

*292If the plaintiffs claim for damages is precise, and fixed by an agreement of tbe parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment-by default admits the claim: Garrard v. Dollar, 4 Jon. 175. In actions where the measure of damages is to be-given by the jury, the assessment must be made upon the proofs introduced by each party, and the onus of proof as to the amount of the damages, is upon the plaintiff; as a judgment by default admits something to be due, but not the amount.

The case before us is an action of assumpsit, for goods, wares and merchandise sold and delivered, and the specific articles are not set forth in the declaration. The judgment by default admitted the cause of action, and the plaintiffs were entitled to nominal damages without introducing any proof; but in seeking substantial damages they were not relieved from the necessity of proving the delivery of each article, and the value thereof: 3 Chit. Gen. Pr., 673; 2 Burr., 907.

Upon this inquisition the defendant was at liberty, by cross-examining the plaintiffs’ witnesses, and by other evidence in reply, to disprove anything which was necessary for the plaintiffs to establish, in order to ascertain their damages. On the trial “the plaintiffs introduced evidence to prove the sale and delivery of the goods, &c.,” and his Honor erred in refusing to allow the defendant to introduce evidence in reply. The plaintiffs were only entitled to such damages as the jury would assess, after hearing the proofs of both parties to the action.

There must be a vertiré de novo.

Let this be certified.

Pee. Curiam. Beversed.