Bates v. Wotkyns

Headnote

A plaintiff, in giving a bill of particulars under a second order, stated it as follows : To the following sums of money received by the said defendant for the said plaintiff, to whom they belong, viz., $200, $100, $100, $114, $200, $330, $50 ; all of which were so received at various times during the years 1840, 1841, 1842, 1843 and 1844, but in what particular months, or upon what particular days of such months, the said plaintiff is unable to state, as he kept no account of the dates, nor is he able to ascertain the same; but he believes the said defendant well knows the dates at which said sums were respectively received, as he left said defendant to keep the account thereof, being himself unable to read or write: Held, that the bill of particulars was insufficient, for want of particularity and precision.

Motion" by defendant for judgment of non pros.

This was an action of assumpsit: the declaration contained the common money counts, and a count on an account stated. On the 13th October, 1845, defendant’s attorney obtained an. order for plaintiff’s bill of particulars, which was served as follows: “ Alfred Wotkyns to Galvin Bates, Dr.: To moneys received by. the said Wotkyns, for and belonging to the said Bates, at different times during the years 1840, 1841, 1842, 1843 and 1844, and. in various sums, viz., $200, $100, $100, $114, $200, $330, $50, and other sums during said years, in all amounting to.......$1,400.00 January 13, 1844. To money received by said

Wotkyns, for and belonging to said Bates . 499.15.” On the 17th of October, defendant’s attorney procured a second order, requiring plaintiff to specify therein the particular sum received by the defendant for the plaintiff, the time when each sum was so received, as near as might be, and the purpose for which they were so received. Plaintiff’s attorney served a second bill as follows :

“ Alfred Wotkyns to Calvin Bates, Dr. To the following sums of money received by the said Wotkyns for the said Bates, which were intrusted to said Wotkyns to be accounted for by him to said Bates, to whom they belong, viz., $200,

$100, $100, $114, $200, $330, $50, all of which were so received at various times during the years 1840, 1841, 1842, 1843, 1844, but in what particular months, or upon what ^particular days of such months, the said Bates is unable to state, as he kept no account of the dates, nor is he able to ascertain the same; but he believes that the said Wotkyns well knows the dates at which said sums were respectively received, as he left said Wotkyns to keep the account thereof, being himself unable to read or write. Also to other sums so received, and for the purpose aforesaid during said years, but the particular amount thereof, and the times when received, the said Bates is unable, for the reasons aforesaid, to state, but he believes the amounts and -dates are well known to the said Wotkyns, for the aforesaid reasons. To moneys so received by said Wotkyns, for and belonging to said Bates, and so intrusted at various times, from the early part of the year 1834, to about the month of July, 1843, so that the balance thereof in said Wotkyns’s hands amounted to, and was acknowledged by said Wotkyns to be, at the said last' named time, $1,400 or thereabouts; but the particular sums or dates, the said Bates is unable to state, for the reasons aforesaid.

Jan. 13, 1844. To moneys received by said Wotkyns for and belonging to said Bates, for which the said Wotkyns was to account to said Bates,

$499.15

To interest in said sums.”

The defendant swore that he gave the account as near as he could, and meant in good faith to comply with the orders.