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.