Dows v. Davis — 5 Hill & Den. 512

Majority

p. 512

Dows and another vs. Davis.

Headnote

Where a declaration in trover for divers bank notes and checks contained ISO counts and more than 10,000 folios, all the counts being alike except as to the time of the several conversions, and the plaintiff swore that he expected to prove ' as many distinct acts of conversion as there were counts; held, that the court would not order any of the counts stricken out, especially as the suit was com- • menced since the new fee bill of 1840. ,

Semblej that in trover the plaintiff cannot give in evidence more than a single' act of conversion under any one count in the declaration.

R. N. Morrison, for the defendant,

moved to strike out a part of the counts contained in .the plaintiffs’ declaration, on the ground that they were unnecessary. The suit was commenced since 1840, and the declaration was in trover for divers bank notes and bank checks. It contained 150 counts and more than 10,000 folios.

H. H. Martin, contra,

read affidavits showing that the. .plaintiffs were commission merchants in the city of New-York; that the defendant had been their confidential clerk and book-keeper for nearly three years, within which period he had from timé to time converted to his own usé divers bank bills and bank checks

p. 513

belonging to the plaintiffs, and concealed the fraud by his mode of keeping the books ; and that the defendant had admitted the conversion of bills and checks to the amount of nearly $10,000. All the counts were alike, except that the conversions were laid on different days; and the plaintiffs swore that they expected to prove as many distinct acts of conversion as there were counts in the declaration. The counsel cited Stante v. Pricket, (1 Campb. 473;) Smith v. Milles, (1 T. R. 475, 479;) A tkinson v. Matteson, (2 id. 172, 177;) Sess. Laws of 1840, p. 328.

It is very questionable whether the plaintiffs can give in evidence more than one distinct act of conversion under any one count in the declaration. But however that may be, as the plaintiffs have not inserted more counts than they expect to prove separate causes of action, and as the costs of the declaration are no longer charged by the folio, (Sess. Laws of 1840, p. 328,) the defendant has no ground for complaint

Motion denied.