Beard v. Van Wickle

Decided October 15, 1824

New York Supreme Court · decided 1824-10-15

The plaintiff declared upon a promissory note of about $103, and joined the money counts in the same declaration, 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…

Decided 1824-10-15

Curia-

¶1The 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

¶2Motion denied with costs.