
    
      C. M. Cregier and Wife vs. Benjamin J. Smyth.
    
    1. Where in an action of indebitatus assumpsit, the declaration contained only a count for money, had and received, the omission to file with it a bill of particulars, was held a cause for special demurrer.
    2. Motion to s£t aside the verdict for plaintiffs, and reverse the decision below, granted, w'th leave to the plaintiffs, on payment of the costs of demurrer, to file, with the declaration, a bill of particulars, and to post the usual rule to compel the defendant to plead.
    
      Before Bdtler, J., at Gillisonville, April Term, 1843.
    Report of the Presiding Judge.
    This was an action of indebitatus assumpsit for money had and received. The only count in the declaration is the common count for so mudh money had and received by the defendant to the plaintiff’s use. There was no bill of particulars filed with the declaration, or other memorandum, setting forth the specific ground of action. The defendant’s counsel filed a special demurrer, suggesting this omission as one that required amendment, The plaintiff’s counsel, moved to have the demurrer stricken out as frivolous, which motion I over-ruled. He then put in . a joinder in demurrer, which brought up two questions: 1st. Is it necessary in any case of indebitatus assumpsit for money had and received, to file a bill of particulars, and 2d. If so, had the defendant’s counsel availed himself of the proper mode of exception, to wit: by special demurrer. Upon the 1st question, I have no difficulty.— The judgment in the case of Smyth vs. Lehre, 2 C. R. Mill., 240, has my concurrence. In an action containing only a count for money had and received, the plaintiff must always file an account of particulars; otherwise, the generality of the count will be a surprise on the defendant, and in such case the plaintiff’s case will be stricken from the docket.
    From this and other cases, it is clear that plaintiff cannot go to trial upon a declaration in indebitatus assumpsit, where a bill of particulars has been required by the defendant.
    The 2d question then occurs: what is the proper mode of compelling the plaintiff to file a bill of particulars 1— The 4th rule of court may afford us a guide by which we may be governed, and seems to have been framed in reference to to the general principles of the practice in the courts of Westminster; although, it is certainly more explicit in its provisions. It is as follows:
    “ A copy of every deed, bond, or open account, or other writing declared on, shall be filed at the clerk’s office, at the time of filing the declaration, and the defendant, or his attorney, shall have oyer of the original, if he thinks proper' to demand it, before he shall be required to file his plea; but this demand must be made before the rule to plead expires.”
    This rule applies to written instruments only, and does not embrace the general demands of indebitatus assumpsit. But let us see what will be the consequence of an omission to file a copy of the writing contemplated under it ? The defendant has a right to demand a copy of such writing before he file his plea, but he must do so before the rule to plead expires; otherwise, he would waive his right to make such demand, and would have to plead to the matters contained in the declaration itself. Nor do I think a demurrer would lie, so as to take advantage of an omission, which might have been remedied by timely application. If the same principle can be applied to actions of indebitatus assumpsit, when there is no writing, the same result will follow, and would be in conformity with the course of English practice, which Mr. Tidd, (l vol., 534,) lays down as follows:
    
      “ When the declaration does not disclose the particulars of plaintiff’s demand as in actions of assumpsit for goods. sold, work and labor, and so forth, the defendant’s attorney may take out a summons before a-Judge, for the plaintiff s attorney to shew cause, why he should not deliver to the defendant’s attorney, the particulars in writing of the plaintiffs demand, for which the action is brought. This summons, which cannot, it seems, be had, until after the •defendant has appeared, is usually taken out before plea, and unless good cause be shewn to the contrary, the Judge will make an order agreeably to the summons, which operates as a stay of proceedings till the particulars are delivered.”
    The plaintiff cannot, therefore, under this practice, ever get his case on the docket against the consent of the defendant, where he has availed himself of his legal rights.. But a defendant, by failing to demand it, may waive his right to call for a bill of particulars, and a waiver would be presumed after he has pleaded, or where he has not taken advantage of any prescribed mode.
    In this State, we have no express mode provided, but it is said in the case of Smyth vs, Lehre, that the plaintiff’s case will be stricken from the docket, upon motion, when he has refused to file a bill of particulars; for, in that case Judge Bay says, the plaintiff denied the necessity of, or the defendant’s right to demand a bill of particulars, and had insisted upon his right to put the case upon the docket, and go to the trial under the general count, and when it would seem the defendant had demanded a bill of particulars.
    From this, as well as the principle - recognized in our rule of court, the defendant has a right to compel the plaintiff to disclose the specific grounds of his action, before he is required to plead ; and now the question arises, can this end be effected by a special demurrer suggesting the omission 1 Such might, in the end, be the result, but the principles of the common law require parties to come to an issue as soon as practicable, and with that view, each party should make as early a move as is in his power. Upon a simple demand on the defendant, by summons, or notice, (as under our rules of court,) he would be compelled to furnish a bill of particulars, or be deprived of the right of having his case put upon the docket for trial. And although a demurrer might effect the same objects, it would not do so with the same promptness and simplicity; nor would it comport so well with the symmetry of the law. A demurrer refers only to, and admits the contents 'of the declaration proper. The bill of particulars filed with the declaration cannot be referred to to explain or enlarge the technical character of the averments and allegations in the declaration itself. This view would seem to conflict with a dictum of Judge Johnson, in the case of Bailey vs. Wilson, 1 Bailey, 15, in which the court delivered an authoritative judgment upon this point, and the only one then in controversy, “ that in a suit by summary process, founded on a former judgment, the plaintiff must annex a copy of the judgment to the copy process, served on the defendant, and the omission need not be pleaded in abatement, but maybe taken advantage of by motion.” This decision was made in reference to the 35th rule of court, which is as follows:
    “ In all actions within the summary process jurisdiction of this court, a copy of the deed, (fee. (fee. shall be annexed to, and endorsed on both the copy process and the original,” and as the Judge says in the case referred to, this is the more necessary, as the plaintiff’s case, otherwise, would be imperfectly understood from the concise statement usually contained in the body of the process, and by way of reason, and not as a part of the judgment, the same learned Judge says, “the omission is, I think, analagous to the bill of particulars in a declaration, and in that form, the defendant was not bound to plead to it, but might have demurred, or, as in this case, moved to quash the proceedings.”
    But whether a demurrer would lie, for an omission to file a bill of particulars, with a declaration in the general jurisdiction was not then the subject of judicial enquiry, nor do I understand the Judge to have pronounced any judgment upon this point. I feel myself, therefore, free to decide the matter according to the convictions of my own judgment, in conformity with the principles of practice deducible from our own rules of court, and the practice of Westminster. And I am inclined to the opinion, that the defendant in this case, should have demanded in writing, from the plaintiff’s attorney, a bill of particulars, before the rule to plead had expired, and that he cannot take advantage of the suggested omission by demurrer, which is calculated to produce delay that, otherwise, might have been avoided.
    The demurrer in this case, is, therefore, overruled, with leave to the defendant to plead to the declaration instanter.
    As this is a question, however, of some difficulty in practice, I would be glad that the question be carried to the Court of Appeals for its decision.
    The defendant now appeals from, and moved to reverse the judgment of his Honor, the presiding Judge, on the following grounds:
    
      1. Because his Honor erred in ruling, that objection cannot be made by special demurrer, to a declaration containing only a count for money had and received, with which no account of particulars, or notice of the nature of the demand, is filed.
    2. His Honor erred in ruling, that when plaintiff omits to file an account of particulars with his declaration, according to the requisition of the 4th rule of court, the defendant must demand in writing from the plaintiff’s attorney a bill of particulars, before the rule to plead expires, and if he fails to make such demand before the rule to plead expires, that it will be a waiver of all exceptions to the declaration for that cause.
    B. G. Aelston, for the motion.
    A. Rhett, contra.
   Ouria. per

O’Neall, J.

The 4th rulé of co.urt provides that “ a copy of .'every deed, bond, or open account, or other writing, declared on, shall be filed in the clerk’s office, at the.time of filing the declaration,, and the defendant or his attorney shall have oyer of the original, if he'think proper to demand it, before he shall be required to file his plea ; but this demand must be made before the rule to plead expires.” In construing the words “ open account,” I should, if the subject was not touched by authority, have held that it meant an account appearing by, and to be proved by original entries; then a copy could and should be filed. In all other cases of accounts, depending upon, and to be proved by the memory of witnesses, there is nothing of which a copy can be filed. In Smyth vs. Lehre, 1 Con. Rep. by Mill, 240, the case was assumpsit for money had and received. No bill of particulars was filed with the declaration. For this defect, as he supposed it to be, the presiding Judge, Bay, struck the case from the docket, and the Constitutional Court affirmed his decision. In delivering the judgment, Judge Bay said, “I was in hopes that our rule of court, (the same as the 4th rule already cited,) on this head, would have embraced a case of this kind, but as doubts may arise upon the construction of this rule, I hope and trust, that one will be made to include fully a case of this nature, for money had and received, in all cases, in future ; the principles of justice require it.” These observations show that it was then a strained construction to bring an action for money had and received within the 4th rule ; and, indeed, perhaps that case was decided, independent of the rule.— Be that as it may, the authority of that case settled, that a bill of particulars, in an action for money had and received, must accompany the declaration. In England, the rule of the King’s Bench, Trim T. 1, W. 4, requires the plaintiff, in indebitatus assumpsit, or debt on simple contract, to deliver, with his declaration, full particulars of his demand, 3 C. G. P.; 613. This is perfectly analagous to our practice, as settled by Smyth vs. Lehre. The omission to comply with this rule in England, would constitute an irregularity, and the Judge might refuse to try the cause; and if we were free, in all respects, to choose as to our course of practice, I should, I confess, prefer the English practice. But I think we are not. We have to choose between striking the case from the docket, or to consider the omission as cause of special demurrer. The former has the sanction of the case from Const. Reports. The latter has that of two later adjudications. Before I refer to them, I will for a moment look to the case of Davis vs. Hunt, 2 Bail. In that case, the question was, whether the proof corresponded with the particulars. Harper, J., said, and said truly, in reference to that question, “ the bill of particulars was not a part of the declaration.” That is, it was not one of the allegata, which must be proved, as laid.— But he did not intend to say, that the entire omission to file •it, might not, in some way, be setup as an objection to the regularity of the plaintiif’s proceedings.

In Long vs. Kinard, Harp. 47, (decided Nov. 1823), Judge Johnson, speaking of the omission to file a bill of particulars, in an action of indebitatus assumpsit, said that the objection came too late, after plea; “ the defendant could only take advantage of it by special demurrer.” In this ruling, the whole court, consisting of Nott, Richardson, Huger, Colcock and Gantt, concurred. It is true, that the observation that “ the defendant could only take advantage of it by special demurrer,” was an obiter dictum, yet it went out to the bar, under the sanction of an eminent Judge, and unqualified by his brethren-; and it has, for nearly twenty years, remained uncontradicted. Under such circumstances, I should be disposed to say, it might settle a mere point of practice. But it has the support of another and a later case, decided, May, 1828. In Bailey vs. Wilson, and The same vs. Patton, 1 Bail. 15; the 35th rule of court, which requires that “in all actions within the summary process jurisdiction of this court, a copy of the deed, note, open account, or other writing, on which the action may be founded, shall be endorsed on, or annexed to both the copy process and the original,” came to be considered. No copy of the cause of action, (a judgment,) was endorsed on, or annexed to the original, or copy process. A motion was made on the circuit, to quash the process for this defect; it was overruled, and renewed in the Court of Appeals.— Speaking of it, Judge Johnson said, “the omission is, I think, analagous to the want of a bill of particulars to a declaration, and in that form, the defendant was not bound to plead to it, bat might have demurred, or, as in this case, moved to quash the proceedings, (Bac. Abr. Abatement H.,) and that motion is now granted, in the case first in order.” I think this is something more than an obiter dictum. Unless the omission of the bill of particulars was good cause of demurrer, general or special, it would have constituted no cause why the proceedings in Sum. Pro. should have been set aside, or quashed. This makes the decision an authoritative judgment on the point before us. The cases of Long vs. Kinard, and Bailey vs. Wilson, being subsequent in point of time, to the case of Smith vs. Lehre, and placing the objection in a more formal way, and apprising the party, plaintiff, of it earlier, we prefer to adopt the practice, pointed out in them.

The motion to set aside the verdict, and reverse the decision below, on the demurrer, is granted, but the plaintiffs have leave, on payment of the costs of demurrer, to file, with their declaration, a bill of particulars, and to post the usual rule to compel the defendant to plead.

Richardson, and Evans, JJ., concurred.

Wardlaw, J.

I think, that the want of a bill of particulars, was an irregularity which might have authorized the defendant’s refusal to plead; but the bill of particulars is no part of the declaration, and to the want of it, a special demurrer will not lie.  