Clark v. Hillyer ( 1806 )

Kirkpatrick, C. J.

— Said that soon after the act passed, this question came before this court on a certiorari; that he himself was then of opinion, that the act was sufficiently complied with, by a general statement like the present, without giving the items of the account — but that his brethren, three in numbei’, (the court then consisting of four judges), were all of a contrary opinion; and that the course of decisions ever since, had been in conformity to their opinions, from which he was not now inclined to depart.

Rossell, J.

— Said that he thought it too strict a proceeding, to require the particular items of the account, [*] it was a strictness that the superior courts did [75] not require. That a declaration in this court did not contain the particular items of the account.

Pennington, J.

— It is true, a declaration in the courts pursuing the course of the common law, does not contain a particular specification of the items of an account; but in cases of assumpsit for merchandise, &c., the charge is general, for goods, wares and merchandise, sold and delivered. But the plaintiff is required in these courts, by positive law, to deliver to his defendant or his attorney, if required, before the plea pleaded, a copy of the account, or a bill of the particulars of the demand whereon the declaration is founded; and this to enable the defendant to plead and otherwise defend himself. This he is not entitled to in the justices’ courts. The copy of account called for in the act constituting courts for the trial of small causes, is a substitute for the bill of particulars, directed in the practice act, and ought to be equally minute and particular • the same reason subsisting in both cases.

By the Court. — Let the judgment be reversed.

Cited in Carter v. Lackey, Spenc. 608.