By the Coivrt
— Flandrau, J.The mere giving a note immaterial furnished for a building does not destroy the lien which the person furnishing the materials would have had, had the note not been given. So long as the note remains in the hands of the person furnishing the articles, it is a mere adjustment of the amount due, and a written instead of a verbal promise to pay it.
The question of whether the Clerk erred in the assessment of the Plaintiff’s damages on the default cannot be reviewed in the first instance by writ of error to this Court. The Defendant, if he was dissatisfied at the rule adopted, should have moved the Court below for a reassessment. See Babcock & Hollinshead vs. Sanborn & French, decided at this term.
The judgment is affirmed and the case remanded to the District Court.
Emmett, C. J., dissents to that part of the decision which refuses to review the assessment of damages on a judgment by default.