Rust v. Rowe

Headnote

Where plaintiff served a sufficient hill of particulars, after service of notice of motion for judgment of non pros., the motion was denied, on plaintiff’s paying $10 costs.

Motion by defendant for judgment of non pros, or discontinuance against the plaintiff for his neglect to comply with the peremptory order for further particulars.—It appears on the part of the defendant that this is an action of assumpsit. Plaintiff furnished bill of particulars about 9th May, 1844, for $861 due plaintiff as per account stated in gross, about the month of August, 1839, and interest thereon. A further bill of particulars was served by plaintiff on the, 9th September last, under an order of a judge, which was not satisfactory to defendant as to items, and another order on the 21st of September last was procured, requiring plaintiff particularly to furnish bill with items, considerations, names, dates, circumstances, &c., or show cause on 25th September last; on the 25th,, plaintiff not having furnished another bill nor shown sufficient cause, an order was made requiring plaintiff’s proceedings to be stayed until such bill should be furnished. On the 1st of October last no further bill having been served, this motion was noticed and served on plaintiff’s attorney. It appears 'on the part of the plaintiff immediately after the order of the 25th September, plaintiff set about carefully examining his account in order to furnish a different bill of particulars ; and while he was so en

gaged the papers for this motion were served. On the 14th November last, plaintiff’s attorney served on defendant’s attorney another bill of particulars containing a literal copy of the original statement of an account between plaintiff and defendant with explanations for the balance appearing to be due plaintiff from defendant, and for which this action is brought, which account was stated and balance struck in August, 1839. plaintiff’s attorney offered to pay defendant’s attorney costs of this [49 motion to be taxed on the 14th November last, when the last bill of particulars was served, which defendant’s attorney declined to accept, and gave plaintiff’s attorney notice that he should not receive any other bill of particulars than such as conformed to the peremptory order.