
    A. L. Arrington, Plaintiff in Error, v. The Mobile and Ohio Rail Road Company, Defendant in Error.
    Judgment by default. — It is error to take judgment, by default final, in an action at law, unless it be founded on an instrument of writing- ascertaining' tbe sum due. Hntcb Code, 875.
    IN error from the Circuit Court of Clark County. Hon. Johsa Watts, judge.
    
      The defendants in error sued the plaintiff in error, in assumpsit, in the court below: “ For that the said defendant, A. L. Arrington, on the day of A. D. 1851, in said county, subscribed for and took five shares of the capital stock of the Mobile and Ohio Rail Road Company, and thereby agreed and promised to pay the president and directors of said company, the sum of one hundred dollars, for each of said five shares by him subscribed for as aforesaid, as follows: — two dollars per share, at the time of subscribing, and three dollars per share, in three months from the date of subscription, and the remainder in such instalments as the company should direct from time to time; and that the company had from time to time made due and legal calls sued for. Seven calls were sued for.
    Judgment by default final, was taken against the plaintiff, for $453.50, and the defendant Arrington sued out this writ of error.
    
      G-eorge L. Potter, for plaintiff in error.
    No counsel appeared for defendant.
   Fisher, J.,

delivered the opinion of the court.

The court below entered a judgment final, by default, against the defendant. The action is not founded upon an instrument of writing, ascertaining the sum due; at least none such is declared on, by the plaintiffs.

The statute is as follows, on this subject: “All judgments on demurrer, confession non sum informatus, nil dicit, or by default, in actions of debt, for a sum certain, and in actions founded on any instrument of writing, ascertaining the sum due,” &c., “shall be final on the last day of the term,” &c. Hutch Code, 875.

Under this provision of the statute, a judgment final could not be rendered on the contract, as set out in the complaint.

Judgment reversed, judgment by default, with writ of inquiry, and cause remanded.  