Majority
p. 124Dibble vs. Kempshall and another. said the plea was bad. It should have been pleaded to . the count er declaration—not,to the notes. (Anon. 19 Wend. 226 , and note.) The Court. The plea is bad, for the reason assigned by the counsel. took a distinction between this case and the one cited. Here there is a bill of particulars of the plaintiff’s demand, which is, an amplificatieiT of the decíaration, andjherefore. the defendants may plead to the notes.
Headnote
Where the declaration contains the money counts alone, a plea in bar setting up matter of defence to certain notes intended to be given in evidence under it, is bad; and this, though the plea alleges that the defendant obtained a bill of particulars of the plaintiff’s demand, which contained copies of the notes.'Declaration, money counts in assumpsit, annexing copies of two promissory notes, which the plaintiff gave notice would be given in evidence on the trial. Plea in bar, that the defendants had procured a bill of the particulars of the plaintiff’s demand, pursuant to the rules and practice of the court, and, after setting out the bill of particulars, which contained copies of the two promissory notes, alleging matter of defence to the two notes. Demurrer and joinder.
O. Hastings,-fox the plaintiff,
A. Sampson, for the defendants,
The bill of particulars makes no difference. We decided the same point in a case argued by Mr. Stevens. The defendant can only plead to the note where the plaintiff counts upon it.
Judgment for the plaintiff.