
    Wood, Executor, v. Lemon, Administrator, in Error.
    IN assumpsit against an administrator, the declaration contained two counts. The first stated that commissioners, appointed by the Court, had found the administrator indebted to the plaintiff in a certain sum, on account of effects unadministered, and being so indebted, he had promised to gay. The second was for money had and received. Judgment by default. Held, that the damages should be assessed by a jury, not by the Court .
    
      
       Vide Tannehill v. Thomas, ante, p. 144, and note. If a declaration op a promissory note contain the money counts, and there bp judgment by default, there must he a Writ of inquiry, unless the plaintiff enter a not. pros, as to the money counts. Burr v. Waterman, 2 Cowen, 36, n. The defendant cannot compel the plaintiff to enter such not. pros., and have the damages asaessed by the Court on the note. Beard v. Van Wickle, 3 Cowen, 335.
    
     