Chrysler v. James — 1 Hill & Den. 214

Majority

p. 214

Chrysler vs. James and others.

Headnote

Where a declaration on the money counts was served, with a notice that certain notes, copies whereof were subjoined, would be given in evidence, but not re- . stricting the plaintiff’s claim to those demands; and the defendant put in a plea of the general issue without an affidavit of merits: Held, that the plaintiff could not afterward amend under the 23d rule, by serving a copy of the declaration in the same words as the one before delivered, with a notice that the notes, copies of which were again given, constituted the only cause of action relied on. Such a notice is not a bill of particulars, either in terms or legal effect.

It seems, that if a plaintiff has served a bill of particulars with his original declaration, he will be entitled to amend under the rule in question, by changing the form of the particulars.

For most purposes a bill of particulars is regarded as an amplification of the pleading to which it relates, and is to be construed as forming a part of the pleading

Amendments. The plaintiff served a declaration containing the money counts, with a notice that two promissory notes, of which copies were subjoined, would be given in evidence on the trial. As it did not appear that the notes were the only cause of action on which the.plaintiff relied, the defendants pleaded the general issue, without accompanying the same with an affidavit of merits pursuant to the first rule of May term, 1840, (22 Wendell, 644.) The plaintiff thereupon amended under the 23d rule, by serving the defendants’ attorney with a copy of the declaration in the same words as when originally delivered, with a notice that the notes, of .which copies were again given, were the only cause of action on which the plaintiff relied.^ The defendants’ attorney, thinking the plaintiff irregular in amending his notice instead of the declaration, omitted to plead anew, and at the end of twenty days the plaintiff entered a default, which

p. 215

K. Miller, for the defendants, now moved to set aside for irregularity.

M. T. Reynolds, for the plaintiff.

K the plaintiff had served a bill of particulars with the original declaration, he would, perhaps, have been authorized to amend of course under the 23d rule by simply changing the form of the particulars. Although the rule only provides for amendments of the pleadings, yet, for most purposes, the particulars are regarded as an amplification of the pleading to which they relate, and are construed as though they formed a part of it. (Starkweather v. Kittle, 17 Wendell, 20.) But it is not necessary to decide that question. In this case the plaintiff did not, in the first instance, serve a bill of particulars. He only gave such a notice and copy of notes as would authorize him to give the instruments in evidence under the money counts, pursuant to. the act of 1832, without restricting his claim to those demands. It was not a bill of particulars, either in terms or in legal effect. His subsequent amendment was nothing more than delivering a bill for the first time; and that was not within the rule authorizing an amendment of the declaration as of course. The plaintiff may, no doubt, voluntarily deliver the particulars of his demand after the service of the declaration, for the purpose of avoiding the delay incident to an order for a bill obtained by the defendant. But he cannot in that way impose on the defendant the necessity of pleading anew, and verifying his plea under the first rule of May term, 1840. '

Motion granted.