Carter v. Tuck , 3 Gill 248 ( 1845 )

Spence, J.,

delivered the opinion of this court.

This was an action of assumpsit in Prince George's county-court.

The declaration contained a count for sundry matters and articles properly chargeable in account—the common money counts; there was, also, an account filed with the declaration. The defendant pleaded non assumpsit.

The exception sets forth, that at the trial the plaintiff abandoned the account which he had filed with his declaration, and proved by a witness that the plaintiff’s intestate, at the instance and at the request of the defendant’s intestate, paid to the witness fifty dollars.

To which evidence the defendant, by his counsel, objected, as inadmissible under the pleadings in this cause, and prayed the court to instruct the jury, that the plaintiff was not entitled to recover any claim or sums of money, except those specified and included in his account filed with his declaration; which instruction the court refused to give, but were of opinion, and so decided, that it was evidence under the common counts.

Our first enquiry is, therefore, whether there was error in this judgment of the county court?

The counsel for the appellant insisted, that the account filed by the plaintiff in this case was, if not identical with, at least so far like a bill of particulars, as to serve the office, and have the same legal effect in pleading, as a bill of particulars. We think the account filed in this case is distinguishable from a bill of particulars. It is the office of a bill of particulars, to extend to, and inform the antagonist party, what is claimed under each count in the nar, be they many or few, whereas the account filed in this case forms an essential part of the first count in the nar, and without which it would be defective: it shews what die matters and articles properly chargeable in account, as set forth in this count, were; and does not, like a bill of particulars, profess to inform the defendant, with particularity, what is claimed under every count in the declaration; for these reasons the evidence was properly admitted under the common counts. We make this decision, after having fully considered the case so much relied on in the argument, of De Sobrey, Ex'r of De Laistree vs. De Laistree, 2 Har. Johnson, 191.

The question of jurisdiction raised in this case we consider settled by the decision in the case of Beall and Black, December term 1843, where this court say, “in cases of contract a different principle seems to have prevailed, and in all such cases, the sum recovered, and not the matter put in demand, is made to decide the question of jurisdiction.”

From this rule no departure has been made by the act of 1835. “In all cases of debt or contract, expressed or implied, it is the real debt or damage which founds the jurisdiction.”

By the 4th section of the act of 1835, it is provided, “that if any plaintiff brings such action in the county court, and the verdict of the jury is for a sum not exceeding the sum herein before limited and prescribed (namely, $100,) for the extent of the jurisdiction of the district court, in the several actions herein respectively specified, judgment shall, in such case he given for the defendant with costs.” We are of the opinion, therefore, that the judgment of the court below is erroneous; that if should have been for the defendant with costs.

judgment reversed and procedendo awarded.