
    Merrill v. Mellen.
    After a defendant has pleaded generally to the action, and after an auditor’s report, finding a balance against him, he may be allowed to amend by withdrawing his plea and filing a confession and plea under the statute.
    Assumpsit, on an account annexed to the writ. The writ also contained a general count for goods, wares and merchandize sold and delivered. Plea, the general issue.
    The case having been committed to an auditor, a report was made, by which the auditor found a balance of $108.48 due the plaintiff.
    The defendant having brought himself within the rule for a continuance and trial of the action by the jury, moved the court of common pleas to withdraw his plea of the general issue, and file the following instead thereof:
    “ The said defendant comes and defends, &c., when, &c., and relinquishing his said plea by him above pleaded, confesses the plaintiff’s said action, and that the plaintiff is entitled to recover damages therein to the amount of fifty-five dollars and no more.
    “And as to the residue of the plaintiff’s claim, the said defendant says he never promised the plaintiff, as he has alleged against him, and therefore puts himself upon trial.”
    It appeared that on the hearing before the auditor, a portion of the plaintiff’s claim was admitted by the defendant; and the questions arising upon this motion were reserved and assigned to this court for determination.
    
      Sargent, for the plaintiff.
    
      Leverett, for the defendant.
   Perley, J.

The question in this case is, whether, after a defendant has pleaded generally to the action, and after the report of an auditor, finding a balance against him, he may be allowed to amend by withdrawing his plea and filing a confession and plea under the statute. We think the amendment may be allowed.  