M'Kinney v. M'Kinney , 12 How. Pr. 22 ( 1855 )

Harris, Justice.

It may be, that had the defendants applied, in the first instance, to- compel the plaintiff to amend his complaint, the application would have been successful. Blanchard agt. Strait, (8 How. 85,) is an authority in support of such an application. And yet. I am inclined to think, that the provision of the 160th section of the Code, authorizing the court, when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, to require the pleading to be made definite and certain by amendment, is not at all applicable to a case like this.

The plaintiff alleges that the estate represented by the defendants, owes him a specified sum for money disbursed by him for the decedent in his lifetime, and for money received to his use by the decedent. The allegation, it is true, is very general. It may be important to the defendants that, before answering, they should have a more detailed statement of the plaintiff’s-claim. But I do not think it can be said that the allegation is so indefinite or uncertain, that the precise nature of the plaintiff’s charge is not apparent. And so of the allegations in the other counts of the complaint. They are general, and the defendants would, doubtless, need a more particular statement. For this, provision is made in the 159th section of the Code, which declares that the plaintiff, when he seeks to recover the amount of an account, shall not be required, in the first instance, ‘to set forth the particulars of such account. He may state, in general terms, the nature of his charges. But, upon being required to do so by the defendant, he is obliged to go further, and furnish the items in detail. This the defendants have already required the plaintiff to do. This the plaintiff, complying with the requirement, has done.

It is too late, now, for the defendants, after having thus obtained a specification of the plaintiff’s demand, to ask to have the plaintiff compelled to amend his complaint, by making the allegations more definite and certain. If they are dissatisfied with the account furnished, they have but to apply to the court or a judge, and, upon showing that the account is, in any respect, defective, they will be entitled to an order, that a further account be delivered'.

This motion must, therefore, be denied, with costs.