cause is more properly called 'nil dicit,' but the term 'default' is usually extended to cover this case also." In Lennon v. Rawitzer, 57 Conn., on page 585, 19 Atl. 334, Loomis, J., delivering the opinion of the court, defines a default as "a common-law judgment which was entered when the defendant neglected or refused to appear, or when he acknowledged the action to be just, and withdrew his appearance,"-a definition which clearly does not embrace judgments upon demurrer, whether such judgments be regarded as final or interlocutory. They are, indeed, doubtless the latter in such a case as the one now under consideration, for two reasons: First, because, being in an action for unliquidated damages, it is, as a default also would be in such a case, an incident which entitles the plaintiff to judgment, but does not determine the amount of such judg ment, (Sheldon v. Sheldon, 37 Vt. 152; Holcomb v. Town of Winchester, 52 Conn. 448;) and, second, because the statute passed in 1872, allowing a party upon the overruling of a demurrer to plead over, causes the interlocutory judgment of respondeat ouster to be entered. But in reference to the latter point, as said by this court in Denton v. Town of Danbury, 48 Conn. 372, “if the party entitled to plead or answer over refuses or neglects so to do, the court must render judgment in favor of the plaintiff for his damages and costs, if the demurrer be determined in his favor." And this judgment, when rendered and final, either because immediately so, the damages being liquidated, or after damages assessed if unliquidated, is a judgment upon demurrer, and not on default. Even if it were admitted that the defendant was bound to answer over, and that he was, in common parlance, in default for failing so to do, we do not see as that would support the plaintiff's contention, for in the single case where at common law a judgment of respondeat ouster was rendered upon a defendant's demurrer,—that is, where a defendant demurred for a variance between declaration and writ, and pending demurrer leave was granted to amend, and thereupon demurrer was overruled, (Walker v. Walker, 6 How. [Miss.] 500,)-or in the cases where the plaintiff's demurrer to the defendant's dilatory plea is sustained, and thereupon the defendant is ordered to answer over or further, (Cook v. Crawford, 1 Tex. 9; Trow v. Messer, 32 N. H. 361,) "the practice is to give judgment that he answer over, after which, and on his failure to plead to the merits, he may be defaulted," (1 Black, Judgm. § 89.) This is akin to the rules under our practice act. See 58 Conn. p. 566, § 1, 20 Atl. vii., which provides that upon failure to plead agreeably to rule or the order of the court "the court may, on motion of the other party, order a nonsuit, default, or judgment on a cross complaint, counterclaim or set-off, as the case may be." Why order a default in such case, if failure to plead itself constituted a default without such order? But, after all, to do the plaintiff's case full justice, the real contention appears to be that the overruling of the defendant's demurrer, with failure of the defendant further to answer within the time limited by the rules of court is equivalent in its effect to a default; that the right established to a final judgment for damages and the procedure to ascertain and fix the amount of such damages, are identical in both cases; and, that being so, there is no reason to infer that the legislature intended by the act in question to create a difference where none existed before in fact, or now exists in principle, but that the opposite inference should be drawn, and the act construed as extending to demurrers overruled, with failure to answer over, as being "the clear intention of the legislature, sufficiently expressed." We fully agree that there is force in the claim that such intention should be imputed to the legislature, and will further say that the claim is strengthened by the consideration of the language which has sometimes been used by this court. Thus, in Daniels v. Town of Saybrook, 34 Conn. 377, the court, (Butler, J.,) said on page 381: "The defendants in this case, by demurring to the declaration, defaulted as to the facts sufficiently alleged and essential to constitute a cause of action, and thereby admitted them. When their demurrer was overruled, their case stood as upon default, with all the essential elements of the cause of action, and the right of the plaintiffs to recover some damages, conclusively admitted;" and this language thus made use of in that case, before the act of 1872 permitting answer over was passed, was repeated with apparent full approval in Crane v. Transportation Line, 48 Conn. 366, after the passage of that act. Nor does it substantially weaken the argument as to the inferred intent of the legislature to say, as is undoubtedly true, that such language was uttered with no reference to any point under consideration in this case, and that, properly understood, with the words "defaulted as to the facts" limited by the subsequent expression that "the case stood as upon default, with all the essential elements of the cause of action and the right of the plaintiffs to recover some damages conclusively admitted," means nothing more than that a judgment upon demurrer,-that is, on an issue of law, establishes the same right in the plaintiff, and entitles the plaintiff to the same further procedure to perfect such right, as would follow from a default. But, notwithstanding these strong grounds, we are forced to the conclusion that we ought not to construe the act in question as claimed by the plaintiff. There are, as appears to us, even more conclusive reasons for the opposite conclusion. The as sessment of unliquidated damages by the court, in cases both of default and of demurrer overruled, is not alone in consonance with "the uniform practice of the courts of this state ever since they have existed," (Lennon v. Rawitzer, 57 Conn. 584, 19 Atl. 334,) but also a statute originally passed in 1821, ever since continued upon our statute book, and now Gen. St. § 1106, provides that "in all cases where a judgment is rendered otherwise than on a verdict, in favor of the plaintiff, the court shall assess the damages which he shall recover." Against the settled policy of the state, so often declared by the courts, so long and uninterruptedly continued, for more than 70 years sanctioned by the direct and positive provisions of the statute, it appears to us that no rules or canons of construction justify our extending the provisions of the act of 1889 beyond its express terms. In more than a score of Connecticut cases in the supreme court Reports, as also in Gen. St. § 1118, and in Swift's Digest, the expression, "default or demurrer overruled," has been used as clearly meaning and intending two things, not one, and not convertible. In the general rules of practice in the book containing the practice act and rules of 1879, at page 248, in the arrangement of cases for assignment and trial according to the order of privilege, hearings in damages on default stand as one class. (No. 14,) and hearings in damages on demurrer overruled as another, (No. 15.) This is now changed, however, (58 Conn. p. 576, 20 Atl. xi.,-No. 9,) embracing "hearings to the court in damages on default or demurrer overruled." Such being the case, it seems to us that, if the legislature had purposed to change the law, both common and statute, in reference not only to defaults properly and commonly so called and understood, but also in regard to demurrers overruled, in which no judgment of default for failure to plead had ever been moved for by counsel or ordered by the court, it would have been natural and easy to adopt the form of expression so popularly and universally in use; and that, failing to do so, it may be and ought to be inferred that such was not its intention; and we therefore hold that the plaintiff was not entitled to have her damages assessed by the jury. There is error in the judgment complained of, and the case is remanded for a new trial or hearing in damages by the court. The other judges con curred. END OF CASES IN VOLUME 27. Acquiescence. By death of defendant in bastardy proceedings, Estoppel by, see "Estoppel," 16-18. Pleas in abatement, see "Pleading," 2. Death of party. 1. An action, as provided by statute, to re- 2. An action against a railroad company Substitution of heirs. 3. Where, after an action of ejectment is A replication of an account stated to a ACTION. See, also, "Limitation of Actions:" "Pleading;" 66 By husband for injuries to wife, see "Husband By state, see "States and State Officers." On contract, see "Contracts," 16. On insurance policy, see "Insurance," 14. On note, see "Negotiable Instruments," 10. 1. Where plaintiff has a remedy by an ac- 2. Where a cause is referred by consent of Ademption. See "Wills," 35. Adequate Remedy at Law. See "Equity," 1-3; "Specific Performance," 1. See "Boundaries." Injunction against adjoining owner for waste Adjournment. plea of set-off is defective where it does not By legislature, see "State Legislature," 2, 3. allege that the account as stated was just and v.27A.-71 Administration. See "Executors and Administrators." (1121) Alimony. Alteration. Of highway, see "Highways," 7. 2. The record of the probate court showed Adultery. As ground for divorce, see "Divorce," 3. Advancement. See "Wills," 36. By factor, see "Factors and Brokers." ADVERSE POSSESSION. Mistake as to boundaries, see "Boundaries," By wife. ALTERATION OF INSTRU- Of contracts, see "Contracts," 10-13. Where the makers of a note allege an al- Amendment. Of constitution, see "Constitutional Law," 1, 2. ANIMALS. Trespassing animals. The fence act of 1700, (section 1,) com- 3. Defendant in ejectment, in support of 721. 4. Where a married woman took posses- Affidavit. For arrest, see "Arrest," 2, 3. Sufficiency, see "Elections and Voters," 11. Answer. APPEAL. I. APPELLATE JURISDICTION. II. REQUISITES. See, also, "New Trial." Allowance of claims against insolvent, see "In- Amendment of praecipe, see "Writs," 2. I. APPELLATE JURISDICTION. Who may appeal. 1. A ward may appeal from a decree 2. To a creditors' bill making a mortgagee 3. Under Act March 11, 1875, providing error does not lie to the entry of a judgment 4. A judgment of a court of common pleas II. REQUISITES. Time of taking. 5. Where an order for the removal of pau- 6. Under Rev. St. c. 70, § 12, requiring 7. Rev. St. c. 63, § 24, requiring bonds on III. PRACTICE. Assignment of errors. 8. On failure of appellant to furnish a copy 9. One appealing from an order denying a --- 10. Where the clerk's affidavit to the tran- peal on the ground of such delay.-Bixler v. 11. Where plaintiff in error submits the 12. An assignment of errors relating to the 712. 14. When, in a cause tried before a court 15. Under Act April 18, 1874, providing that Remarks of counsel. 16. The remarks of counsel to the jury are 17. The refusal of the trial court, in the 18. Where the denial of a motion to recom- 19. The court, on appeal, could not, where Weight and sufficiency of evidence. 20. In an action against a town for injuries 21. Defendant demurred to a replication on |