
    [*] [472] WHITALL’S Adm’rs against VAUGHN’S Adm’rs.
    ON CERTIORARI.
    Bill of particulars, when required, to be delivered before a plea. It should in a charge for money had, name the person of whom received.
    
    A declaration for money had and received, had been duly filed in this cause.
    
      Mr. Griffith, for the plaintiff,
    moved for a rule, that the defendant plead in thirty days, or judgment be entered against him.
    
      
      Mr. Pearson and the Attorney General,
    
    opposed the motion, on the ground that a bill of particulars had been required; and although one had been given, yet it was as general as the declaration, and therefore, insufficient; that in case they went to trial, they would be as much exposed to surprise as though no bill had been given. The bill set out, that the defendant had received money belonging to the testator, of several persons, naming them; and then added, also divers other sums of money, of divers other persons, without naming the persons or sums.
    
      Mr. Griffith contended, that in an action for money had and received, no bill of particulars is necessary, nor could legally be required; but even if it could, yet the one rendered was sufficient, and was as particular as he could make it, without examining the witnesses.
    By the 54th section of the practice act, it is enacted, that the plaintiff, or his attorney, if required before plea shall be filed, shall deliver to the defendant, or his attorney, a copy of the account, or a bill of the particulars of the demand, or. a copy of the bill, bond, deed, bargain, contract, note, instrument, or other writing, whereon the declaration is founded.
    
      
       The same time given to plead after oyer, as when it was demanded. 7 Salst. 178.
      
    
   Kirkpatrick, C. J.

Was of opinion, that where there was no account between the parties, a bill of particulars ivas not necessary.

Pennington, J.

Had the misfortune to differ in opinion with the Chief Justice, as to this point; he [*] thought it more necessary in the case of actions for money had and received, than any other; without this, the defendant was brought to trial, wholly unacquainted with the points to be raised against him, and was liable to be surprised. That the action for money had and received, had been carried full as far as safety would warrant; nor did he think the bill delivered by the plaintiff in this case, sufficient; it was, in fact, leaving [473] every thing open; the defendant was as liable to be surprised as if no bill had been delivered; the plaintiff ought to strike out the general clause in his bill of particulars; but should be left at liberty to add any items he thought proper.

Rossell, J.

Was of the same opinion, on Mr. Griffith striking out the general clause in this bill.

Rule allowed.  