¶1In July, A. D. 1871, the plaintiff below sued as administrator, etc., of M. B,. Wills. The defendants appeared by their attorneys and filed the general issue. When the cause was called for trial the defendants failed to respond. But defendants’ attorneys had neither withdrawn their plea, nor by leave of court, their appearance. The court, without the intervention of a jury, tried the issue of fact raised by the pleadings. As the damages rested in computation, in our opinion the defendants by withdrawing from the field when the case was called for trial may be deemed to have consented, as it was competent for them to do, to a submission of the issue to the court alone. Section 32, of chapter 71, It. S., provides that no petit jurors shall be summoned to attend the terms of the probate courts in certain counties (Weld county among the number) therein *145named as provided in relation to the district courts, but in all causes in the said probate courts, if either party shall demand a jury, the clerk of such court shall issue a venire therefor. No such demand was made, and it is fairly inferable from the conduct of the defendants that a jury was waived.
¶2The declaration is defective, in that the plaintiff therein sues in his representative capacity, but concludes the ad damnum averment to himself personally, and not in his representative capacity. It is impossible to determine whether the recovery is sought by him as administrator, or in his own right. It departs in other respects from approved precedents. The plaintiff will have leave to amend his declaration as he may be advised.
¶3The judgment of the court below was for eleven hundred and forty-two dollars and forty-nine cents. The plaintiff claimed in the ad damnum only nine hundred and fifty dollars. The defendant in error has filed a remittitur for so much of the judgment as is in excess of the ad damnum.
¶4This court has frequently sanctioned this practice. Winne, Cooper, et al., v. Colorado Spring Co., 3 Col. 155 ; City of Central v. Wilcoxen, id. 655.
¶5The judgment of the court below will be reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion.
¶6Reversed.