
    Seeber against Yates.
    UTICA,
    Aug. 1826.
    Where, on a judgment by default, on a declaration upon a promissory note, •with the money counts, the plaintiff had caused the damages to be assessed by the clerk, and taken final judgment •without entering a nolle pro-sequi as to the money counts; on a motion to set aside the judgment and subsequent proceedings, he was allowed to amend on payment of costs, by then entering a nol-le prosequi; and the motion to set aside the judgment was denied.
    The declaration, containing the money counts, with a count on a promissory note, the plaintiff’s attorney had, after a judgment by default, inadvertently caused the damages to be assessed by the clerk on the note without first entering a nolle prosequi as to the money counts ; and taken his final judgment and execution.
    On this ground, it was now moved, in behalf of the defendant, that the judgment and subsequent proceedings should be set aside for irregularity,
    For the plaintiff, it was moved that he might now enter a nolle prosequi as to the money counts; and having thus amended, retain his judgment and execution.
    
      D. Eacker, for the motion.
    
      N. N. Van Alstine, contra.
   Curia.

The plaintiff may amend, on paying the costs of the defendant’s motion ; upon which his motion shall be refused.

Rule accordingly.  