
    ORVIS v. DANA.
    
      N. Y. Common Pleas; General Term,
    1876.
    Bill of Pabticulabs ra Libel.
    While the court have the power, under the Code (§§ 158, 469 ; 59 JUT. 7. 176), as at common law, to order a defendant to furnish a bill of particulars, this power ought not to be exercised in actions of libel.
    If an answer in justification is not sufficiently particular, defendant’s remedy is to move to make it more definite and certain, or to lie by and object at the trial to the admission of evidence under it.
    An affidavit to move for particulars, in tort, must be to the effect that the party does not believe, and cannot form an opinion as to the matters with which he is charged ; that the charge is so vague that he does not know what he is charged with. An affidavit that he is “ignorant of the particulars and facts which defendants expect to prove,” or that he “ has no knowledge, information, or belief as to the persons, times, or places, of the facts by which the defendants propose to establish the material averments,” &c., is wholly insufficient to sustain an order for such a bill.
    The English practice of ordering particulars of justification results from the fact that the particulars are not there required in pleading, as they are here.
    Appeals from orders for particulars.
    
      Charles B. Orvis sued Charles A. Dana for alleged libel in the publication in the New York Sun, of statements charging plaintiff with commercial frauds, &e. He also sued George Jones and Lewis J. Jennings for the publication in the New York Times of a similar article. Both articles gave numerous particulars. In the first action, defendant’s answer alleged generally the truth of the article in justification, besides matter in mitigation; in the second, defendants justified in detail, alleging also matter in mitigation.
    In both actions plaintiff moved for and obtained, at special term, orders that defendants serve bills of particulars in whole or in part.
    The order in the action against The Times was made before the motion in the action against The Sun was determined.
    The opinion delivered upon the motion in the latter action, and which is referred to by the court in the opinion on appeal, was as follows :
    Van Brunt, J. The only authority which plaintiff has been able to cite, in support of his novel application, is Tilton v. Beecher, 59 N. Y. 176. It seems to have been assumed that the court of appeals, in the decision of that case, has put forth some new and hitherto unfamiliar doctrines with reference to the granting of applications for bills of particulars. But an examination of this case will show that that decision was strictly in accordance with the practice before the Code, and is in entire harmony with section 158 of the Code, as amended in 1851, and does not support the position of the plaintiff on this motion. It is true that the court in that case say that: “A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put on trial with greater particularity than is required by the rules of pleading.”
    
      This sentence in the opinion, standing alone and read by itself, would support the proposition that a party to an action might in any case be required to furnish a “bill of particulars ” of his claim or defense ; but an examination of the whole opinion clearly shows that the court did not intend to lay down any doctrine so broad and comprehensive as this.
    Just prior to the use of the sentence which I have quoted, the learned justice who wrote the opinion in the court of appeals had been calling attention to the fact that when a “bill of particulars ” is spoken of, it is ordinarily understood as referring to a “bill of particulars ” of the dates and description of the transactions out of which, in actions upon money demands consisting of various items, the indebtedness is claimed to have arisen, and that in such cases it is granted as a matter of course; but that it is an error to suppose that “bills of particulars” are confined to actions involving an account, or to actions for the recovery of money demands arising upon contract, and then he makes use of the language which I have quoted.
    In support of this proposition are cited various authorities showing that in actions of libel, escape, trespass, trover and in ejectment, “ <foe plaintiff ” has been ordered to furnish a bill of particulars, and that also in criminal cases the instances are frequent, where the courts have, by analogy to the practice in civil actions, ordered the prosecutor to furnish a bill of particulars ; and that in England it is very common at the present day to order particulars to be filed in an action for divorce, either on the ground of cruelty or adultery.
    The learned justice then refers to the rule laid down by the chancellor in the case of Wood v. Wood, 2 Paige, 108, governing the pleadings in actions for divorce.
    After referring to the case of the Commonwealth v. Snelling, 15 Pick. 321, and Early v. Smith, 12 Irish 
      
      Com. L. Appendix, 35, he says: “A reference to a few of the authorities upon which these decisions were founded will show that in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised before-hand of the particulars of the charge which he is expected to meet, the court has authority to compel the adverse party to specify those particulars so far as in his power,” and then cites numerous cases in this country and in England where the plaintiff has been ordered to file a bill of particulars, but not a single case where such an order has been made as against a defendant.
    This condition of the authorities would seem to show that the court of appeals, in determining the practice prior to the amendment of 1851 to section 158 of the Code of Procedure, intended to support the proposition as lastly stated by the learned justice who wrote the opinion of that court, rather than the one first above quoted.
    A brief examination of the last clause of section 158 will show that this view is in entire harmony with the provisions of that section.
    That section, after providing that in actions brought upon an account, or where an account is relied upon as a matter of defense, the adverse party may exact as a matter of right a bill of particulars, and that the court may order a further account when the one delivered is defective, says, that “ the court may in all cases order a bill of particulars of the claim of either party to be furnished.”
    It is to be observed that under this clause of section 158, the power of the court to order a bill of particulars is limited to the case of a '“ claim ” being made upon one party or the other, and it is the particulars of this “ claim ” only which can be ordered.
    The use of the word “claim” in this connection, clearly refers to a demand for affirmative relief, and is used in the same sense as the word “demand.” It means “claim or demand,” and could never be applied to a mere defense.
    Section 158 of the Code having provided in what cases a bill of particulars can be ordered, it follows, as a matter of course, that the court has no power to make such an order in a case not embraced within the provisions of that section. In the case of Tilton v. Beecher, a claim for a heavy amount of damages was made by the plaintiff against the defendant, upon the ground that the defendant had had criminal intercourse with plaintiff’s wife, and this claim brought the case clearly within the provisions of the Code.
    The answer in this case sets up merely a defense, and makes no claim whatever as against the plaintiff, and therefore by the Code no power is conferred upon the court to order a bill of particulars to be furnished by the defendant.
    The plaintiffs upon this motion have cited various authorities to show that the justification of a libel must always be as broad as the charge, and of the very charge attempted to be justified, and also to show with what particularity a justification must be plead, but all these authorities refer simply to what it is necessary that an answer should contain in order to make a good plea of justification, or to what it is necessary for the defendant to prove to sustain such plea, and have no application to the question now under consideration.
    Having thus seen that the case of Tilton v. Beecher does not decide that the defendant in every case can be compelled to furnish a bill of particulars, and that such was not the practice before the Code, and that section 158 of the Code does not authorize the court to order the defendant to furnish a bill of particulars in an action for libel, it would appear that this motion should be denied.
    
      But the Hon. J. F. Halt of this court, in a case brought by this plaintiff against the editors of The New York Times for damages for an alleged libel, having held that the court had power to grant a bill of particulars in a case like the present, although of a different opinion, I am constrained to follow his decision until reversed by the general term.
    I shall, therefore, order that the defendants furnish a bill of particulars, showing, who the persons were who suspected plaintiff’s honesty, and instituted inquiries and learned that his record was not good; in what newspapers at Toronto the plaintiff advertised for clerks, the names of the clerks he engaged, and of whom he got rid ; the nature of the different kinds of business transacted by the plaintiff in Chicago partaking of the nature of swindles; from whom he received consignments while in Center street, and to whom he failed to account. Also the names of the persons swindled by the plaintiff by the means of notes indorsed by Bead.
    Motion therefore granted, order to be settled on notice.
    From the order in each case defendants respectively appealed. From so much of the orders as denied parts of the applications, plaintiff also appealed. The two appeals were argued together.
    
      Willard Bartlett, counsel and attorney, for defendant in the case against the Bun.
    I. All existing powers of the court as to bills of particulars in personal actions are derived from the Code. Before the Code, our only statute as to bills of particulars was 2 R. 8.-352, which (continued in force by Code, § 455) relates only to real property actions. Before the Code, the common law rules were adopted with all the force of statutory enactment (See Const. Art. I. § 17). The Code was intended to supersede these (Code of 1848, § 135; Code of 1849, § 158). The revision of statute and common law in the last cited section, abrogates the previous rules superseded by it (Bartlet v. King, 12 Mass. 545; U. S. v. Tynen, 11 Wall. 92, and cases cited; Smith’s Stat. Constr. 904; Pomeroy’s Sedgw. on Stat. Constr. 365, n.; Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v. Marshall, 11 Id. 350; Nichols v. Squire, 5 Id. 168). The express restoration of a certain power by the Code of 1849 and 1851, was necessary, because the common law power (Grah. Pr. 2d ed. 518) had been taken away by the Code of 1848. Before the amendment of 1851, it was not the practice to order particulars (Mason v. Ring, 10 Bosw. 598).
    II. The .Code limits the power to particulars of the “ claim ” of the party.
    III. A justification of an alleged libel is not a claim (1 Bouvier L. Dic. 233; Plowd. Com. 359 ; Jacob's L. Dic. tit. “Claim” ; Coke Lit. § 420 ; Burrill’s L. Dic. ; Jackson v. Losee, 4 Sandf. Ch:381; Bell’s Dic.; Lawrence v. Miller, 2 N. Y. 254; Pomeroy on Rem. 757).
    IY. At common law, our courts never had or attempted to use this power in libel, but only (against defendants) in cases of set-off (Cráh. Pr. 2d ed. 519 ; Burrill’s Pr. 180, 433; People v. Munroe C. P., 4 Wend. 200; Brewster v. Sackett, 1 Cow. 572). The cases cited in Tilton v. Beecher do not conflict, because they were all other classes of actions or suits, and sought particulars of plaintiff’s charge, not of the defense. The only apparent exception (Commonwealth v. Snelling, 15 Pick. 321) amounted only to an order for a special plea.
    Y. The justification is sufficient, but if not, cannot be questioned here.
    YI. The application is unprecedented, and, even if within the power of the court, should be denied.
    
      
      II. C. Gardiner (John Cummins, attorney), for plaintiff in both cases :—As to the question of power, —relied on Tilton v. Beecher, and cases there cited.
    As to the right of plaintiff to require details of the justification,—cited: Stephen on Pleading, 311; Boyce v. Brown, 7 Barb. 80; Winter v. Baker, 50 Id. 432; Bunge v. Koop, 48 N. Y. 225 ; 1 Chitty's Pleading, 531; Id. 5th Ed. 532; Id. 5th Ed. 533, 534; Wachter v. Quenzer, 29 N. Y. 552; Bissell v. Cornell, 24 Wend. 354; Stilwell v. Barter, 19 Id. 487; Fidler v. Delavan, 20 Id. 57; Cooper v. Barber, 24 Id. 105; Fero v. Ruscoe, 4 N. Y. 165; Stiles v. Comstock, 9 How. Pr. 448 ; Fry v. Bennett, 5 Sandf. 54; Sayles v. Wooden, 6 How. Pr. 84; Anibal v. Hunter, 6 Id. 255; Billings v. Waller, 28 Id. 97; 1 Hilliard on Torts, 4th Ed. 401, § 37; Gage v. Robinson, 12 Ohio, 250 ; Broom's Maxims, 7th Ed. 191 and 192; Skinner v. Powers, 1 Wend. 451; McKinley v. Rob, 20 Johns. 351; Townshend on libel, 2 Ed. 554,§ 357; Kerr v. Force, 3 Craneh C. Ct. 8; Ames v. Hazard, 8 R. I. 143; 1871, De Armond v. Armstrong, 37 Ind. 35 ; Tilson v. Clark, 45 Barb. 181; Stephen on Pleading, 388, Rule IV.; J’Anson v. Stuart, 2 Smith's Leading Cases, Hare and Wallace's Notes, 71 and 73, and 74 and 75; Henson v. Veatch, 1 Blackf. 370 ; Douge v. Pearce, 13 Ala. 128; Taylor v. Robinson, 29 Me. 323 ; Nelson v. Musgrave, 10 Mo. 648 ; Samuel v. Bond, Littell's Sel. Cas. 158; Nall v. Hill, Peck, 325 ; Andrews v. Vanduzer, 11 Johns. 38 ; Sterling v. Sherwood, 20 Id. 204; Swann v. Rary, 3 Blackf. 298; Kent v. David, Id. 301; Eastland v. Caldwell, 2 Bibb, 21; Matthews v. Davis, 4 Id. 173 ; Stow v. Converse, 4 Conn. 17 ; Starr v. Harrington, 1 Smith, 360 ; Shepard v. Merrill, 13 Johns. 475; Sharpe v. Stephenson, 12 Ired. 348; Torrey v. Field, 10 Vt. 353 ; 1 American Lead. Cas. 3 Ed. 178; Hopkins v. Smith, 3 Barb. 599 ; Steinman v. McWilliams, 6 Barr, 170-177; Parke v. Blackiston, 3 Harring. 373-378; McGrlemery v. Keller, 3 Blackf. 488; Offut v. Early-wine, 4 Id. 460 ; Byrket v. Monohon, 7 Id. 84 ; Banter v. McEwen, 8 Id. 495, 496; Wonderly v. Nokes, Id. 589 ; Landis v. Shanklin, 1 Carter, 92 ; Newbit v. Statuck, 35 Me. 315; Steele v. Phillips, 10 Humph. 461; Grants v. Vinard, 1 Smith, 287, and 1 Carter, 476 ; Crandall v. Dawson, 1 Gilm. 556; Coulter v. Stuart, 2 Terger, 225 ; Kirtley v. Deck, 3 Hen. & M. 388 ; Orme v. Lodge, 3 Harr. & J. 83 ; Grilman v. Lowell, 8 Wend. 573. As to the merits of the application,—discussed the facts claimed to constitute the cause of action, and insisted that they were such as to entitle the plaintiff to full particulars of the facts and circumstances by which defendants expected to prove justification.
    
      Austin Abbott (Howard Pay son Wilds, attorney), for the defendants in the action against The Times.
    I. The Code gives no power to order particulars in such a case. The opinion expressed in Tilton v. Beecher, that the defendants’ remedy where plaintiff’s claim is not pleaded with particularity, is by asking for particulars, not by motion to make more definite and certain, can not be extended to a plaintiff’s objection to supposed indefiniteness in a justification, without overruling the repeated decisions of the same court, that in case of answers setting up matter in avoidance, the remedy is by motion under section 160 of the Code (Wall v. Buffalo Water Works Co., 18 N. Y. 119 ; Farmers’, &c. Bank v. Sherman, 33 Id. 69 ; Kerr v. Hays, 35 Id. 331. S. P., Martin v. Kanouse, 2 Abb. Pr. 327; S. C., 11 How. Pr. 567; Wiggins v. Gans, 3 Sandf. 738 ; Watt v. Watt, 2 Robt. 685). And the doctrine that a justification objected to as deficient in lacking some details of time, place and circumstance, is to be cured by such motion, is adopted by all the cases (Maretzek v. Cauldwell, 19 Abb. Pr. 35 ; Shoe and Leather Bank v. Thompson, 18 Id. 413; Billings v. Waller, 28 How. Pr. 97).
    
      II. It is believed that there is no precedent in this country, for ordering a bill of particulars in a civil action for libel. Certainly there is no reported precedent in this State; and it is believed that there is none in n.riy of the States. And in no case of libel whatever has it been ordered, except on the ground that the plea was a mere general aspersion, not relative to any time, place, or particular (Commonwealth v. Snelling, 15 Pick. 321).
    ITT. The facts showing necessity for the particulars, and how the particulars are material in aid of the prosecution; or that justice cannot be done upon the trial without them,—are essential, to entitle a party to a bill of particulars (Willis v. Bailey, 19 Johns. 268; Depew v. Leal, 5 Duer, 663 ; Commonwealth v. Snelling, 15 Pick. 321; Tilton v. Beecher, 59 N. Y. 176).
    IV. The cases cited by plaintiff as to his right to a fuller specification of particulars of the justification are all cases of demurrer, or other objection to the defendant’s pleading; none are cases of motion for particulars. Plaintiff . should demur if he would rely on those authorities, for on demurrer the defendant may have leave to amend.
    V. The answer of these defendants fairly apprises plaintiff of the particulars of defendants’ charge. This is all that the law can require (Brown v. Williams, 4 Wend. 360; Stowits v. Bank of Troy, 21 Id. 185). Particulars are not ordered to limit the generality of a pleading, and to furnish evidence, or facts whereon to found an affirmative defense (Fullerton v. Gaylord, 7 Robt. 551; Drake v. Thayer, 5 Id. 694; People v. Tweed, 5 Hun, 353; Strong v. Strong, 1 Abb. Pr. N. S. 238).
    VI. The matters appear to be within plaintiff’s knowledge; and they are not within the personal knowledge of defendants, nor alleged so to be (Powers v. Hughes, 39 Superior Ct. Rep. 482).
    
      YII. Bills of particulars ought never to be ordered from defendants in libel suits, but the pleader should be left to plead Ms case at his own peril, at the risk of not being allowed to give evidence of facts not properly-pleaded. Where a pleading sets up a “claim,” the function of the bill is to particularize it. It does not call for evidence, but for a defimtion of the claim ; and this the courts can readily appreciate and enforce in advance of the trial. Where there is no “claim” in the strict sense of the word, but merely an answer of matter in avoidance, the court has no line to go on in prescribing particulars. Every motion for particulars in such a case, would involve such an attempt as we have heard, on the part of plaintiff’s counsel here, to discuss the facts on the motion. An order wMch requires a defendant to furnish the particulars of the facts and circumstances by wMch he intends to prove, &c., calls for evidentiary, not for issuable facts, to wMch plaintiff can have no right.
   By the Court.—Van Hoesen, J.

On the application of the plaintiff, Judge J. F. Daly, at special term, ordered the defendants, Jennings and Jones, to give a bill of particulars of some of the matters pleaded by them in justification of an alleged libel upon the plaintiff. Afterwards, upon the application of the plaintiff, Judge Vah Brunt, at special term, ordered the defendant, Dana, to give to the plaintiff a similar bill of particulars.

The defendant, Dana, appealed from the order of Judge Vah Brunt, and the plaintiff and the defendants Jones and Jennings, all appealed from the order of Judge Daly.

The appeals were argued at the same time, and two questions were discussed upon the argument, and are now to be determined.

First. Has the court power in an action for libel, to require the defendant to give the plaintiff a bill of particulars of the matters pleaded in justification % Secondly. If the court possesses such powers did the plaintiff in these cases present good reason for its exercise %

The plaintiff complains that the defendants in both actions published concerning him the same libelous statement. That statement is general and vague. It alleges that the plaintiff is an old swindler, and refers in a loose way to some transactions of a questionable character in which he was engaged at different places in former years. The defendant, Dana, attempts to justify by simply alleging that the charges of the statement are true. The defendants, Jones and Jennings, not content with the general allegation of the truth of the charges, plead, with fullness and circumstantiality, the facts by which they expect to establish the truth of their imputations upon the plaintiff.

There is no precedent in this State for a bill of particulars in a libel suit. In all probability, the plaintiff would not have thought of asking particulars in these cases but for the decision in Tilton ». Beecher (59 N. Y. 176). Because the court of appeals decided in that case that it was in the power of a court of original jurisdiction to order the plaintiff to furnish a bill of particulars in an action for criminal conversation, it seems to be supposed that hereafter a bill of particulars is to be as much a matter of course in an action of tort, as it has hitherto been in an ordinary action on a book account. If Tilton v. Beecher had never been decided, there would still be abundant authority for holding that it is a necessary part of the powers of every court of general jurisdiction to order bills of particulars whenever a party is unable to ascertain from the general statements composing the pleadings of his opponent, what particular questions of fact he must prepare himself to try.

It is true that in New York the courts have never ordered particulars in any actions of tort, except trover and ejectment; but in England and in Ireland, as well as in several States of the American Union, courts whose inherent powers are the same as those of our own courts have ordered bills of particulars in trespass, in actions for nuisance, and in actions for libel.

In Jones v. Bewicke (5 L. R. G. P. 32), which was an action for libel, the defendant, who had charged the plaintiff with perjury, and who pleaded by way of justification that the charge was true, was compelled to give particulars of the matters he relied on to justify the libel.

In Wren v. Weild (4 L. R. Q. B. 213), the defendant, who had stated to persons who had bought certain machines of the plaintiff, that such machines were an infringement of his patent, was ordered by the Queen’s Bench to furnish to the plaintiff a bill of particulars specifying in what respects the machines infringed his patent. In Wood v. Jones (1 Post. & P. 301), the plaintiff, in an action for slander, was compelled to furnish the names of the persons to whom the defendant had communicated the slander, and whose patronage the plaintiff had lost in consequence of the aspersions.

In Slator v. Slator (8 Law Times Rep. N. S. 856), the plaintiff was ordered to give particulars of the occasions on which the defendant had uttered the slander. The plaintiff’s counsel stated, in the course of his argument, that he had searched the books from Grolce Jace downward, without finding a precedent in England for the application. In Lagan v. Gibson, Irish Exchequer Nov. 12, 15, 1875 (reported in 9 Irish Rep. C. L. Series, 507), which was an action for seduction, the defendant applied for a bill of particulars, and the chief baron, though denying the application, used the following language on the subject of the power of the court to order particulars. “ There is no doubt that the court has an inherent jurisdiction to order particulars in all cases in which it is satisfied by affidavit, that, either for the purpose of pleading, or of defense at the trial, the plaintiff should more clearly define his cause of action. The application, however, is not of course: special grounds and circumstances must be proved, to show the necessity for more specific information.”

The cases of Echlin v. Brady (17 Irish Jur. 188); and Early v. Smith (12 Irish L. R. N. S. Append, xxxv), both establishing the power of the court to order particulars, were mentioned with approval by the court of appeals, in Tilton v. Beecher.

In True v. Plumley (36 Me. 476), and in Clark v. Munsell (6 Metc. 373), the plaintiffs were compelled to furnish particulars of the facts constituting a right of action for slander. Whilst there is no doubt that the courts that I have mentioned have never until recently exercised the power, it cannot now be questioned that they have, even in actions of tort, an inherent jurisdiction, to quote the words of Chief Baron Palles, “to order particulars.”

It is contended, however, by the counsel for the defendants, that the courts of Hew York have not the power to order particulars that is possessed by the courts in the United Kingdom, because the Code, which was intended as a revision of, or as a substitute for, the old common law practice, makes no provision for bills of particulars, except where an account is pleaded, or where the claim of a party is lacking in definiteness. The word claim has, it is argued, a signification well settled and thoroughly understood. It implies, we are told, a demand for affirmative relief; and for the purpose of showing such to be its meaning, various definitions of the word have been collected from the law dictionaries of Jacob, Bouvier and Bur-rill. All the definitions agree that a claim is a demand for a thing, the ownership of which, or an interest in which, is in the claimant, but the possession of which is wrongfully withheld by another.

It is singular that no one of the definitions fairly covers the demand made by Tilton against Beecher. It would be doing violence to language to say that the damages which Tilton sought, were property which he owned, and which Beecher wrongfully withheld. The court of appeals, when they declared it to be within the power of the city court of Brooklyn, to order Tilton to furnish particulars, must have regarded the word claim, in "section 158, as having a broader signification than the law dictionaries ascribe to it. In common parlance, a claim means an assertion, a pretension. When claim is used as a verb, many respectable writers seem to regard it as a synonyme for state, urge, insist, or assert. Thus, Judge Yaw Bbtjwt, in his very able opinion as special term, speaks of actions in which the “ indebtedness is claimed to have arisen.” And Judge Bapallo, in his opinion in Tilton v. Beecher, says, “It is claimed that an important element in the case consists of confessions.” Again, he says, “ He denies that the acts charged were ever committed, but claims that for the purpose of preparing his defense, &c., &c.” Again, he says, “the transactions out of which the indebtedness is claimed to have arisen, &c.”

It is very plain that both Judge Bapallo, and Judge Yaw Bbttwt used the word in its proper sense, without associating with it the idea of an affirmative demand, and that when they said “ an indebtedness is claimed to have arisen,” they meant merely that the indebtedness was alleged or stated to have arisen. I am aware that such a use of claims is not strictly correct, and that the best authorities condemn it; yet, that it is the ordinary use of the word, admits of little question. Bad as the misuse may be, it is no worse than the misuse in the English courts of the word contention, which is employed at Westminster Hall as a synonyme for point or proposition. I think that claim in section 158 must be taken to mean case; and that the legislature intended to embrace in the word all causes of action, and all grounds of defense, pleas of confession and avoidance, no less than the pleaded stories of both parties, complaints and counter-claims. A bill of particulars may be ordered, says section 156, in all cases, and from either party.

It evidently was the intention to confer upon the courts the most absolute and sweeping power to order particulars. It would have been easy for the legislature, if their design had been not to allow particulars, except of matters set out in complaints or counterclaims, to make the language of section 158 express that intent. The words all cases include all actions of torts, suits in equity, in fact every imaginative description of action. Either party may in all cases be compelled to furnish particulars. Where language so comprehensive is used, and where discretion so unlimited is plainly confided to the courts, we ought not to be ingenious in discovering ways to thwart the legislative will. It would be wrong to give the word claim a narrow and technical meaning, and then let it master the rest of the sentence, and control its construction.

But, giving to claim the narrow interpretation insisted on by the counsel for the defendants, and conceding that section 158 only allows the ordering of particulars of affirmative demands, I think that section 469 of the Code gives ample authority for bills of particulars in cases like the present. “That section,” says Judge Rapallo, in Tilton v. Beecher, “would probably suffice to preserve the authority of the court to order particulars in all cases before accustomed.” It continues in force all the old rules, and practice of the courts, not inconsistent with the Code. The old system of pleading was abolished. The old practice was retained, where not inconsistent with the Code.

What is there inconsistent with the Code, in permitting the court to order a bill of particulars in a libel suit % The counsel for the defendants says, that section 158 was intended as a substitute for the old law, upon the subject of bills of particulars. That is begging the question. Wherein is section 158 of greater force than section 469 %

The old law permitted a bill of particulars in an action of trover, and in ejectment. When the Code was first enacted, the only section on the subject of bills of particulars provided merely that a bill of particulars might be ordered of an account of more than twenty items. Will it be seriously contended that the adoption of that section ousted the courts of their power to order particulars in actions of trover and of ejectment ? Certainly not. The old practice remained in force, being preserved by section 469. An intent on the part of the legislature to deprive the courts of an essential branch of their powers, of a part of their “ inherent jurisdiction,” is not be presumed without clear evidence of such intent.

It is of no force to say that the granting of bills qf particulars in actions of libel was not a part of the accustomed practice of our courts. The court of appeals disproved of that objection when they established the power of courts of original jurisdiction to order particulars in an action for criminal conversation. The powers of a court do not depend upon the frequency with which the exercise of them is invoked. I think, therefore, that the power to order particulars to be furnished by the defendant in a libel suit is beyond dispute.

We come now to the question whether in these cases we ought to exercise that power. I am clearly of the opinion that we should not.

It was said by Chief Baron Palles, in Lagan v. Gribson, supra, that ‘ ‘ particulars are always useful to the defendant; they limit the occasions in reference to which the plaintiff is at liberty to apply evidence, and consequently restrict the range of proof necessary to the defendant. But this restriction does not per se constitute a necessity for particulars, within the meaning of the rule.” In Horlock v. Lediard (10 M. & W. 677), Baron Parke said: “Theremust be some special ground alleged; otherwise in every case of trespass, it would be a step in the cause to apply for a bill of particulars, on the affidavit of the defendant, who would never know what the grievances complained of were.”

In Echlin v. Brady (17 Irish Jurist, 188), Chief Justice Lefroy said: “The principle applicable to such a case is that wise precaution that the party applying to oblige his adversary to make an exposure of his case must make the application founded upon, an oath that he does not believe, and cannot form an opinion as to the matter with which he is charged; that the charge is so vague that he does not know what he is charged with.”

In his affidavit in the action against Jones and Jennings, the plaintiff states no more than this: “ he is ignorant of the particulars and facts which defendants expect to prove.”

In his affidavit in the action against Dana, the plaintiff merely says that “he has no knowledge, information, or belief as to the persons, times, or places, of the facts by which the defendants propose to establish the material averments in his answer.”

Tested by the rules laid down in the cases I have cited, these allegations are utterly insufficient to entitle the plaintiff to a bill of particulars. They merely amount to a statement that the plaintiff does not know by what witnesses and by what evidence the defendants will endeavor to establish their defense. He does not say that he does not know what he is charged with, nor does he state that he cannot prepare for trial for want of knowledge as to what questions of fact will be litigated, but he seeks to compel the defendants to give him an interior view of their case.

In the language of Chief Justice Bobertsoet (1 Abb. Pr. N. S. 238), “The law has always considered sacred the rights of both parties, to keep secret their preparations and means of attack and defense.” It can seldom be necessary, under our system of pleading and practice, to compel either the plaintiff or the defendant to furnish particulars in an action for libel. In England, since the enactment of the Common Law Procedure Act, it has been allowable to plead justification of a libel in general terms. In consequence of that relaxation of the old rules of pleading, it has there become necessary to make bills of particulars supply those details of the justification which were formerly an essential part of the justification plea. Hence, we see particulars waived in Jones v. Bewicke, supra; Townshend on Slander, 2 Ed. §, 353, note 2.

In Hew York, the strict rules of the common law respecting the pleading of justifications remain in fuE force (Wachter v. Quenzer, 29 N. Y. 553).

If the defendant faüs to plead a complete justification, he wiE not be permitted to prove his defense. The plaintiff has his election either to move to make the answer more definite and certain, or to Ee by, and object on the trial to the reception of any evidence offered to support the defective plea (Wachter v. Quenzer, 29 N. Y. 547 ; Spooner v. Keeler, 51 Id. 527 ; Tilson v. Clark, 45 Barb. 178).

In view of this state of the law, it is difficult to understand why the plaintiff should apply for a bill of particulars. He claims that as the pleadings stand, the defendant Dana cannot, upon the trial, offer any evidence whatever by way of justification, because the charges in the alleged libel are so vague and general, and that all he has pleaded in justification, is the general averment that the charges are true ; not a single specific fact being stated in the answer. If such defects in an answer could be or should be supplied by a bill of particulars, the plaintiff would actually be building up Dana’s defense ; but “ a bill of particulars is only necessary when justice demands that a party should be apprised of matters with greater particularity than is required by the rules of pleading.”

It certainly is not the office of a bill of particulars to make a bad answer good. The rules of pleading require that a justification of a general imputation upon the plaintiff’s character should state specific facts showing in what manner and in what instances he has misconducted himself; and it must extend to every part of the libel (1 Chitty’s Pl. marg. p. 494).

Thus it appears that the common law rules of pleading, which in this respect we have retained, require in the answer the same detailed and specific information that a perfect bill of particulars would contain.

Moreover, we must not lose sight of the fact that a bill of particulars is no part of the record (Kreiss v. v. Seligman, 8 Bart. 440).

A justification should be part of the record (lioness v. Stubbs, 7 C. B. N. S. 555).

In closing these observations, it is proper to inquire what greater necessity has the plaintiff for a bill of particulars, than any other plaintiff in a libel suit in the last three hundred years has had %

In England, until a general form of justification was permitted, no plaintiff ever applied for or obtained a bill of particulars. Had the rules of pleading remained unchanged, there would not be a solitary precedent for the plaintiff’s application. We have not changed the ancient rules. The reason which caused the ordering of particulars in libel suits in England, has no application, and no place here.

Affirming the power of the court to order a bill of particulars to be furnished by either party in any action, I am of the opinion that, for the reasons that I have given, the plaintiff’ s application for bills of particulars ought to have been denied.

The orders of Judge J. F. Daly and Judge Vah Brunt for bills of particulars should be reversed, with ten dollars costs and the disbursements to- the defendants Jones and Jennings ; and ten dollars and the disbursements to the defendant Dana. 
      
       Present, Daly, Ch. J., and Van Hoesen, J.
     