Stowits v. Bank of Troy

21 Wend. 186

Opinion

By the Court,

Nelson, Ch. J.

The first question has, in effect, been heretofore disposed of by the court. The plaintiff is not entitled to charge for special counts in taxation of costs, for the reason that the common counts are all that can be deemed necessary. 19 Wendell, 113, This has been the practice for more than twenty years ; after which we cannot consistently require the insertion of them for the sake of setting forth specially a demand and refusal at the place of payment. A defendant will not thereby suffer, as the same proof must be given to authorize a recovery, as if the notes had been specially counted upon ; and by calling for particulars of the action, he can always ascertain in due time, that the proof will become material, and be prepared to meet it. The case of Smith v. Smith, 2 Johns. R. 235, shows that the proof of special matters beyond the mere execution of the notes, preliminarily to the introduction of them under the money counts, affords no solid objection to the practice.

The bill of particulars, I think, sufficiently explicit, as it fully apprised the defendants of the grounds of the plaintiff’s claim; indeed, nothing short of some description of the notes would have complied with the rule of practice. The form is not technically exact, such as simply giving the copies of notes, instead of saying so much money, $50, for instance, due upon them, describing them; but the substance is in the bill, and no one could be misled.

Judgment reversed; venire de nova from' the mayor’s court) costs to abide the event.