Beard v. Van Wickle , 3 Cow. 335 ( 1824 )

Curia-

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.