delivered the opinion of the court.
The objections to this judgment are well taken, and must prevail.
The action, though in equity, was for damages resulting from the alledged wrongful acts of appellants in entering upon the land of appellee and cutting an carrying away the bark from his trees. The amount of damage claimed was $300. The defendants, though served, failed to appear and answer, and the court below, without proof or the intervention of a jury, rendered judgment by default for the sum claimed.
In Daniel vs Judy, 14 B. Mon., 303, which was an action ex delicto, by petition in ordinary, such a judgment was deemed erroneous, because by the Civil Code, (sec. 153) “allegations of value, or amount of ‘ damage, cannot be taken as true by the failure to 1 controvert them.”
The provision, in our opinion, is alike applicable to all actions, whether equitable or in ordinary, and, in no case can such allegations be taken as true for for want of a denial.
A jury was likewise necessary in this case to make the assessment of damage.
The action was ex delicto, and in such cases, whether commenced by petition in ordinary, as they usually are, or in equity to obtain the aid of a specific attachment, as here, the intervention of a jury is not *230dispensed with by a failure of a party to appear at the trial, unless with the assent of the court. (Civil Code, 361.)
3. A charge that a def’t is insolvent does not, of itself, authorize the issue of an attachment; nor does the charge that another defendant is about to remove from the state authorize the issue of an attachment, averment *that he is about to remove his property, without leaving enough to satisfy the plaintiff’s demand'Such assent to a waiver of a trial by jury should appear in the entry submitting the facts to the court; or it may be inferred from an entry showing that the court heard the testimony and pronounced judgment thereon; but such inference cannot be indulged where nothing appears but a judgment by default.
The objection that the allegations of the petition are insufficient to uphold the attachment is also well founded. Their purport is, that Clark was insolvent, and Smith was preparing to remove from the state with the intention of not returning. The charge of insolvency alone is insufficient for an attachment; a charge of removing from the state, unaccompanied with the statement that the party was about to remove , . ms property, or a material part thereot, out oí the state, not ^eavm& enough to satisfy the demand sued for, is equally defective.
T ¿i • i ,i , in this case, however, there was no answer and no m0(,i0n to vacate the attachment, and upon the re-r turn of the cause the appellee should have leave to amend his petition if he so desires, and on failure to do this his attachment should be vacated.
For the errors indicated the judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.