’ The opinion of the Court was delivered by

If a defendant suffer judgment to go against him by default, it is in some cases, for instance in the action of debt, final, and in all cases it is an admission of the *plaintiff’s action. But where the action sounds in damages, it is incumbent on the plaintiff to *39show the extent of those damages by legal evidence; and unless he do so, he ought only to recover nominal damages. Nor does it follow that the plaintiff is entitled to recover the whole amount, even where the damages are of a character that render them, in some degree, certain and specific.1 As in an action against the sheriff for the escape of a debtor in execution under a ca. sa., where it would seem that the judgment against the debtor ought to form the measure of damages ; yet the insolvency of the debtor, and many other circumstances, may be shown, in mitigation of damages. And’in this particular case, if it had appeared, on the face of the judgment itself, that it was either wholly or partially satisfied, it will not be pretended that the plaintiff was, notwithstanding, entitled to a verdict for the whole. It follows clearly, then, that whenever it is necessary to execute a writ of inquiry on a judgment by default, that the plaintiff is not, as a matter of course entitled t'o recover his entire demand.

The declaration in this case, as it should, sets out the bail bond, and assigns a breach of the condition. The exechtion of a writ of inquiry was, therefore, necessary to ascertain the damages. The judgment and fi. fa. against the principal was the only evidence offered, and this, it is said, is conclusive. Now, it is not denied, that to charge the bail, the return of a ca. sa. (non est inventus, 2 is expressly required by the act of 1809, (b) and if, as I have endeavored to establish, a jury is not bound to give the whole amount demanded, it is certainly a good reason why they should not, that the defendant was not legally liable; The very absence of such proof, which, if it existed, was so completely in the power of the party to procure, is such a circumstance as, I should think, would justify a jury in finding a nominal verdict for the plaintiff.

I am therefore of opinion, that the motion ought to be granted.

dissented :

As there is no exception taken to the proceedings in this case, I presume the plaintiff has set out every thing necessary to show that he is entitled to recover The defendant, by making default, admitted every thing stated in the declaration. It only remained to prove the amount of the demand; and on that subject the judgment and fi. fa. in the action were conclusive.

It was not necessary to produce the ca. sa. The undertaking of the bail is, that his principal shall pay the debt, or surrender himself in discharge of his bail, or that he will pay the debt for him. The jury are not at liberty, as in an action of escape against the sheriff, to give less than the amount of the judgment against the principal, that is, the sum for which the bail is bound.

If the plaintiff has not set forth a good cause of action in his declaration, the judgment may be arrested; but, as the proceedings are not before us, we cannot judge of that matter; no such ground, however, is taken.

But, if the defendant is liable at all, it must be for the sum actually *40due, and the jury are no more at liberty to give nominal damages, than they are on a promissory note, or single bill.