
    Dewitt C. Stephens agt. George Jackson and Robert Robbins.
    Where a declaration contains two special counts and two common money counts, it is questionable whether it is strictly regular for defendant to procure an order for a general bill of particulars to the whole cause of action. There is no ground for a bill so far as the special counts are concerned. (See the authorities cited in the case.)
    
    
      It seems, that jn such a case the order should require the bill of particulars as to the common coumis only.
    
    
      September Term, 1846.
    Motion by defendants for judgment of nonpros.
    
    Defendants’ papers showed that an altere ative ana peremptory order had been obtained and served on plaintiff’s attorney, requiring the plaintiff to furnish the *attorney for the defendants with an account in writing of the particulars of his demand, for which this action was brought; and that no bill of particulars had been furnished pursuant to such orders.
    Plaintiff’s papers showed that the declaration in this cause contained four counts; two special counts, for the nondelivery, by the defendants to the plaintiff, of a quantity of soda ash, and two common money counts. It was stated, that the plaintiff did not expect to introduce any- evidence under the common counts; and supposed the orders for bill of particulars were inoperative as to the special counts ; did not furnish any bill under either of the orders. Plaintiff’s attorney stated that it was his opinion that the orders for bill of particulars served were inoperative and- void for embracing the special counts, those counts being themselves the bill of particulars. (Gra. Pr. M ed. 511; Chit. Arch'. 875; 4 Cow. 200; 19 Wend. 122.)
    D. Wright, defendants' counsel.
    
    Alfred Gt. Jones, defendants' attorney.
    
    T. Jenkins, plaintiff's counsel and attorney.
    
   Bronson, Chief Justice.

It is questionable whether the defendants have been strictly regular. There was no ground for a bill of particulars, so far as two special counts are concerned. But, without settling any point of practice, I will make an order which will answer the purpose of both parties, as the plaintiff admits that he has no evidence under the common counts. Ordered, that the common counts be stricken out of plaintiff’s declaration.  