delivered the opinion of the court.
The plaintiff in error has specially assigned three causes of error, all of which are inconsistent with the record. 1st, That a jury came to assess damages, when no interlocutory judgment had been rendered by default. 2d. That a jury came to assess damages at the same term of the defendant’s default without any order of court. 3d, That the jury were sworn to try the issue, when the defendant had wholly failed to appear.
It is true that the record does not show that any plea was filed; nor does it show that a judgment by default was rendered, but it shows that the parties appeared,” that a jury came, who were sworn' to try the issue joined, that evidence was adduced and argument of counsel heard, and that the' jury found “that the defendant did-undertake and promise as in the said declaration set forth.” If any' error was committed it was caused by the plaintiff in error and not by his adversary. He had all the advantage of a fair trail, as though he had pleaded to the action, and it does not appear that any injustice has been done him. The defendant below by failing to plead admitted the facts contained in the declaration, for which reason, had the jury found in his favor, no judgment could have been rendered on the verdict, as it would have contradicted the pleadings upon the record.
We conceive that substantial justice has been done between the parties, and therefore affirm the judgment.