
    * Woodbury Stores, Plaintiff in Error versus Leonard White.
    Where, after a default, damages are assessed for the plaintiff, either by the jury or the judge, and the judge admits illegal evidence, the party aggrieved may file exceptions to such admission, and thus bring the question before the whole court.
    Papers filed m a case, and used as evidence in ascertaining the plaintiff’s damages after a default, are no part of the record, nor can the Court take notice of them upon a writ of error brought tc reverse a judgment rendered for such damages
    Error coram, nolis, to reverse a judgment of this Court, rendered at the last May term of this Court in this county, in favor of the defendant in error, original plaintiff.
    
      The declaration was in assumpsit upon a promissory note signed by the plaintiff in error, dated April 27th, 1807, for 3000 dollars, payable to Ebenezer Storer, or order, in one hundred and twenty days, at the Union Bank, in Boston, with usual grace, and endorsed by the said Ebenezer to the defendant in error. After sundry continuances in this Court, the defendant was defaulted, and the plaintiff’s damages were assessed by the Court at 3365 dollars, for which sum, with costs, judgment was rendered.
    The note filed in the case was of the following tenor : — “Portland, April 27th, 1807. For value received, I promised to pay Mr. Ebenezer Storer, or order, three thousand dollars, in one hundred and twenty days, at the Union Bank, in Boston, in foreign money, with usual grace. Woodbury Storer.” And endorsed thus : — “ For value received, pay the within to Leonard White. Ebenezer Storer.”
    
    
      The error assigned was the variance between the note filed in the case, and the note declared on ; the former being payable in foreign money, and therefore not negotiable; and the note mentioned in the declaration being described as a negotiable note payable in cash.
    
      Whitman for the plaintiff in error.
    
      Kinsman for the defendant in error.
   Ouria.

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.  