Soria v. Planters' Bank , 4 Miss. 46 ( 1838 )

Mr. Justice Prat

delivered the opinion of the court.

The first error assigned is, that the action ought to have been a joint action against all the endorsers mentioned in the declaration.

The question here presented was fully argued and adjudged at the present term, in the case of J. H. Lyle v. The Planters’ Bank, and we refer to the reasoning in that case as decisive of the present question. In that case it was decided that a suit against a less number than the whole, was well brought.

The second question is precisely the same as that decided in the case of Gridley v. Brigs, Lacoste & Co., at the last January term.

The action here was a case upon a promissory note, in the court below. The declaration contained a special count on the note, the usual money counts, with an insimul compulassent. No bill of particulars was filed with this declaration, except what refers to the promissory note declared on.

Judgment by default was rendered, without a discontinuance of the common counts, and damages assessed by the clerk. This assessment is complained of, and the cause brought before us on a writ of error.

It was contended for the plaintiff in error, that each common count contained at least one item so plainly and particularly described therein, as to entitle the plaintiff below to give .evidence under it.

As an illustration, it was said that the count for money loaned states, “ That on the first day of March, 1SS8, at the county aforesaid, the defendants were indebted to the plaintiff in the further sum of 8000 dollars, &c., for so much money before that time lent and advanced, &c.

It was urged in argument, that under this statement in the count, a single loan made anterior to the time stated in the count, for the sum of 8000 dollars, could be legally proved without any bill of particulars.

This reasoning we deem erroneous, as applicable to the count under consideration, and not less so in relation to all the common counts. The account required by the statute to be filed with the declaration of the plaintiff, must state distinctly the several items of his claim against the defendant. And here we regard the particular date of the item, as a necessary part of that distinctness of item, which the statute requires.

First. Because it is necessary to enable the defendants to prepare their defence, which was undoubtedly one of the primary .objects of the legislature in passing the act.

Secondly. That the account should remain on the records of the court, as a protection for the defendant against any subsequent action for the same cause.

A general statement of account filed with the count for money loaned, “ that the defendant was, before a particular day mentioned in the count, indebted to the plaintiff in 8000 dollars for money before that time loaned,” surely, in our judgment, would not be such an account as the statute requires. There is nothing to specify the period of the loan or loans; nor whether these were one or more. If this position be true, and we are satisfied it is so, then no evidence could be given under the same statement in a common count.

Under the reason of the statute, upon which we have before commented, there is no ground to distinguish the case of an insimul computassent from any of the other common counts; the items of the account adjusted, must be filed with the declaration, or evidence of them will be excluded; and proof of an acknowledgment of all the items which made up an account-stated, must be shown, or something tantamount thereto.

We are satisfied of the correctness of the opinion of the court in the ease of Gridley v. Brigs, Lacoste & Co., and shall decline, under our present impressions, to disturb it.

The judgment below must be affirmed with damages and costs.