Majority
p. 335Beard against Van Wickle.
Headnote
The plaintiff declared upon a promissory note of about $103, and joined the money counts in the same declaration,wfeen-c- a® general money counts arc joined with one on a promissory note in the same declaration, it is erroneous for the clerk, to assess the damages, without first entering a nolle prosequi as to the money counts. In such a case, the defendant cannot compel the plaintiff 10 enter a nolle prosequi, audit, is at his option, to assess damages by a jury, though his claim bo founded m the note, alone
p. 336
Judgment having passed against the defendant by default, the plaintiff assessed his damages upon a writ of inquiry, which' the defendant now moved to set aside, on the ground that the damages should have been assessed by the Clerk, inasmuch as the plaintiff’s demand was confined to the promissory note, upon which alone he claimed damages before the jury; that the defendant ought not to be subjected to the additional costs of a writ of inquiry; and Laws, (sess. 41, ch-259, s. 10) and. 1 Dunl. Pr- 384, were cited in support of. the motion.-
R. S. Church, for the motion-
W. Sisson, contra.
The plaintiff, cannot have bis damages assessed by the Clerk, where the declaration includes the money counts, with a count upon a promissory note, without first entering a nolle prosequi upon tije former. (Burr v. Waterman & Wells, 2 Cowen’s Rep. 36 to 39, note (f).). The defendant cannot compel the plaintiff to enter a nolle prosequi. This is at his option ; and, of course, he must choose whether he will proceed by assessment before the Clerk, or a writ of inquiry;' 1
Motion denied with costs.