
    JANUARY TERM, 1844.
    Benjamin Hughes vs. The Grand Gulf Bank.
    The notes of a bank can be offered in evidence, in an action of assumpsit against the bank, under the money counts.
    In an action of assumpsit against a bank, founded upon its notes, the notes offered in evidence did not correspond with the bill of items filed with the declaration, but were correctly described in the process, forming the foundation of the suit, and had been on file in the papers of the case since the institution of the suit: Held, that, notwithstanding they did not correspond with the bill of items, the notes were properly admissible in evidence.
    In error from the Claiborne circuit court.
    The plaintiff in error sued the defendants in error, upon four of their circulation notes, of the amount of ten dollars each, signed by their president, R, Hughes, and countersigned by S. Callender, their cashier.
    The action was originally brought before a justice of the peace, and the defendants appealed to the circuit court. The plaintiff filed a declaration in the circuit court, containing only the common counts for money had and received, and money paid, and filed with his declaration, an account of the items of his demand, under the statute, specifying four bank bills of defendants, of $10 each, payable to S. Cobun, or bearer; three of them dated May 21, 1839, and one dated August 13, 1835.
    At the trial the plaintiff offered in evidence three notes, payable to S. Cobun, dated May 21, 1835, and one dated August 13, 1835, payable to J. Routh, or bearer, all of which were ruled out by the court, because they were not the notes described in the bill of items. Exceptions were taken, and this writ of error prosecuted.
    There were three errors assigned; but the only one relied on was the second, that, the court erred in ruling out the evidence offered by the plaintiff.
    . The third was substantially the same as the second.
    
      
      J. A. Maxwell, for plaintiff in error.
    It is a principle so well settled, that the promissory note of defendant may be read in evidence on the money counts, after proof of signature, that it is not deemed necessary to cite any authority in support of that proposition. In this case the signatures were admitted, thereby waiving the necessity of that proof.
    The defendants will contend that the plaintiff ought to have filed with the declaration, “ an account stating distinctly the several items of his claim against the defendants,” and will cite H. & H. 690, sec. 6. And will contend further, that the account which appears in the record does not contain a true description of the bank bills; and that, therefore, they were properly excluded by the court. The plaintiff insists that that section does not apply to cases taken to the circuit court, by appeal from a magistrate, but to cases brought in the circuit court ; and further, that when the defendants plead, there was filed with the declaration, a distinct statement of the several items of plaintiff’s claim against the defendants, to wit, the notes themselves sued on before the magistrate. And further, that it was not necessary for the plaintiff to have filed any other or further account. The law which governs this case is found in H. & H. 429, sec. 19, third clause. It provides that “ all appeals shall be tried de novo, in a summary way, without pleadings in writing; and the courts, in rendering- judgment therein, shall govern themselves by the principles of law and equity; and shall hear all the evidence produced by either party, whether the same were produced before the justice or not.” The notes filed by the justice were the cause of action, and so indorsed on' his writ; they were also the plaintiff’s evidence produced before him on the trial, and it will not be pretended that they were improper evidence in that trial. Then, if they were competent evidence before the magistrate, why not in the circuit court ? Because, the defendants will say, the plaintiff filed a declaration, and stated an account, describing other and different notes than those on file with the declaration. To which I answer, under the law it was not necessary to file either a declaration, or an account stating the defendants to be debtors to the plaintiff; that both the declaration and account may be considered as surplusage, which will not vitiate the rights of plaintiff. The plaintiff may put down as many items as he pleases, and have judgment for all he can prove. He may charge for goods sold, &c., and, if the note of defendant may be considered an item, the note being filed with the declaration, is full and complete specification of such item, and notice to the defendant that the plaintiff will rely upon it on the trial. Suppose a plaintiff sues for goods sold, &c., and add the money counts, and with his declaration should file the note of defendant, and an account specifying the items, &c., of the goods, would it be contended that on proof of the signature and of the sale and delivery of the goods, he should'not have judgment on the money counts for his note and interest, in addition to the value of his goods 1 or on failure to prove the sale and delivery of the goods, he should be nonsuited ? So in this case, the plaintiff was entitled to his judgment on the notes filed; and upon as many more notes as he could'produce corresponding with the description in the account. The plaintiff may commence at either end of his proof he pleases; and because he elected to begin with the notes on file, it was no good reason to rule those out, because he did not produce first the notes described in the account. Suppose the plaintiff had filed no account with his declaration, the notes filed, in equity, if not in law, would have been deemed a good and sufficient specification of plaintiff’s cause of action ; and he could have proceeded on them as his account. Then .because the plaintiff has charged other, different, and additional, items, is that any reason why he should not recover on those already properly charged ? But, say the defendants, they were taken by surprise. Certainly not, when at the time they filed their plea, they had before them the notes on which the suit was brought before the magistrate, and his indorsement on the writ describing the notes. One of the notes, at least, “ is so ■plainly and particularly described in the account as to give the defendant full notice of the character-thereof”— the note for $10, dated August 13, 1835, signed by B. Hughes, President, and J. Callender, Cashier, No. 2343. This note ought to have gone to the jury, and the refusal of the court below is sufficient ground to reverse the judgment. The law does not require the item to be described in every particular. All that is required is “ full notice of the character thereof.” The other notes are accurately described in the account, in every particular, except in the year being 1839, instead of 1835. And I contend that the description is sufficient to give the defendants “ full notice of the character of the demand,” particularly when aided by the notes themselves on file, and subject to the inspection of the defendants. The law does not require the account to be written on the declaration, but to be “ filed with ” it. The notes being on file, when the declaration was handed in, it and the notes were filed together at the same instant. In practice it has always been held sufficient to file the original note with the declaration, without any further account. The note contains a full account of the plaintiff’s item, or demand against the defendant; and is “ full and complete notice of the character thereof.”
    It is also contended that the 6th sec. H. & H. 590, does not apply to the money counts. The word “item” cannot be properly applied to money loaned, advanced, paid, had and received, but properly to goods, &c., sold, labor performed, &c. &c. And, finally, the plaintiff alleges that it was not necessary to file any account in this case, because the plaintiff’s demand is so plainly and particularly described in the declaration “as to give the defendant full notice of the character thereof.”
    For all which reasons the plaintiff prays, that the judgment of the Claiborne circuit court may be reversed, and this cause remanded, &c.
    
      II. T. Ettett, for defendant in error.
    The decision was plainly right, for no evidence could be given of anything not specified in the account of items.
    The fact, that the notes offered were filed in the clerk’s office with the appeal papers can make no difference, for if the plaintiff chose to vary his cause of action, it is not the fault of defendants. They could only look to the declaration and account filed.
    
      The mode of declaring generally for money had and received, was adopted to save the trouble of describing each note separately in the declaration. But, suppose the notes had been declared on specially, and the same variance had existed between the pleadings and the proofs, could the notes have been given in evidence ? Surely not. How then can they be given under the bill of items, which is adopted as a substitute for a special declaration, and must be equally particular and accurate 1
    
   Mr. Justice Tkaches

delivered the opinion of the court.

• This case is brought here by writ of error to the circuit court of Claiborne county.

The plaintiff instituted suit before a justice of the peace against the defendant, upon four of its circulation notes, for ten dollars each, and obtained a judgment, whereupon the defendant appealed to the circuit court of the county. The justice of the peace filed in the circuit court the appeal bond, &c., and also the four circulation notes upon which the action was founded. The plaintiff filed his declaration in assumpsit, containing the money counts only. On a trial of the general issue, a verdict was found for the defendant.

The chief objection at the trial seemed to be, that the circulation notes could not be read in evidence, because they did not correspond with a bill of particulars annexed to the declaration, and the court below so ruled. The discrepancy was in the dates, and the names of the payees of the notes.

The misdescription in the bill of particulars was’ not a good reason, in this case for ruling out the notes. In the first place, the notes themselves were filed with the declaration, and in the next place, they were correctly described in the warrant of the justice of the peace, showing the cause of action. It was an action for money, and therefore the notes were evidence under the money counts. The cause of action was manifest, because nothing could have more plainly and particularly described the cause of action than the notes sued upon, filed with the declaration. Where it is necessary to file a bill of particulars with a declaration, the bill should be plain and particular in the description of items. The necessity did not exist in this case, and notes agreeing in character with the bill of particulars could not have been admissible on the trial. The object of the statute is to afford the defendant “full notice” of the cause of action, and, whether he obtain it through the medium of the declaration, by the bill of particulars, or by the instrument sued upon being filed with the declaration, the end of the statute, is accomplished.

The judgment of the court below must be reversed, and a new trial granted by the circuit court of Claiborne county.  