
    
      STROUD vs. BEARDSLEE.
    
    Appeal from the court of the parish and city of New Orleans.
    
      A party, in a suit who in stating' claim against his opponent omits setting forth the necessary circumstances of places and dates, and contents himself with making it in the general terms of the counts usual an declaration at common law, such as, money tent, money had and received, &c. is not permitted the same latitude in proving his claim as in common law courts.
   Mathews, J.

delivered the opinion of the court. This case comes up on several bills of exception taken by the counsel of Beardslee. defendant in the court below, and here appellant. As only one of these exceptions, is insisted on before this court, that alone will be examined.

East'n District.

Jan. 1824

Our law of 1805 regulating the mode of judicial proceedings re quires a concurrency between the allegala et probeto.

The suit is brought by a journeyman printer, to recover wages alleged to be due to him by his employer. The defendant pleaded a general denial and also compensation, and claimed a ballance in his favor by way of reconvention, and thereby in his turn becomes actor or plaintiff in the cause. In the plea of compensation or reconvention, he states several general counts usual in declarations, made in conformity with the practice of courts of judicature, in pursuance of rules established by the common law of England; these are money lent; money had and received to his use; and money laid out and expended for the defendant. &c.

In support of this part of his answer he offered on the trial of the cause in the parish court to interogate a witness, a clerk of the house of Benham & Jones, and to propound to him the following question "Did Mr Stroud obtain from the house of Benham & Jones, of which you was clerk, sundry articles of clothing, between the 21st of January, 1821, and the 10th of April, 1823, on account of Mr Beardslee? were charged to the latter? and has he paid for them?" To these questions the conusel for the plaintiff objected as not being consistent with the allegations of the defendants answer, and the objection being sustained by the Parish court, the latter took an exception to that opinion. In testing the correctnes or error of this decison of the judge a quo, we must consider the defendant, as a plaintiff in his reconvention and accordingly apply the rules of pleading laid down by our system of jurisprudence. Whatever may have been the advantages, derived from the liberality of proof admitted by the courts of common law in England, on such counts as have been above stated, being opposed to the embarassments & difficulties in which suitors sometimes fall, in consequence of great nicety and technicality of pleading established by the usual practice of said courts, We are of opinion that no such benefit or advantage can be claimed for a like mode of proceeding in our courts of justice, simplefied as the practice is by laws which regulate it.

The law of 1805 regulating the mode of proceeding in the late Superior court of the Territory of Orleans; and which forms the basis of practice in the several inferior courts of the state, requires that that the “cause of action should be stated by a plaintiff, with necessary circumstances of places and dates. There is also a general rule of practice founded in common sense, and adopted by all courts to the administration of justice, which requires concurrency between the alegata and probata.-The facts alleged in the defendants answer in the present case, to avoid the plaintiffs claim, and which amount to a reconvention are not set forth with a sufficient statement of circumstances of place and date. To have admitted the evidence offered, would he a violation of that consistency required between allegations and proof. There is a want of certainty in the pleas. We are therefore of opinion that the parish judge did not err in refusing to suffer the interogatory to be propounded to the witness, as requested by the defendant.

Ripley & Pray for the plaintiff, Carleton for the defendant.

It is therefore ordered, adjudged, and decreed, that the judgement of the parish court be affirmed, with costs.  