Laws

Cluff v Thompson, 54 Post Date: Tue, 29 Jul 2008 0:59:07 +0000
Weiler v Mooney, 27 N Y Wkl Y Di g 79 But the court may allow it to be withdrawn and re- fuse the bill of particular S Rosen- baum v England F In S Asso C, 16 N Y Wkl Y Di g 548; Dyett v Sey- mour (Supreme Ct), 8 N Y St Rep 429 Keview on Appea L As to review of the ruling of the trial court on ap- peal, see Hodges v Rutland, etc, RCo, 29 Vt 220; Tilton v Beecher, 59 N Y 176; Witkowski v Paramore, 93 N Y 467- 1 A plaintiff should not be required to furnish a bill of particulars, un- der penalty of having his pleading stricken out, when he swears that it is impossible for him to do so and gives good reasons for his inabilit Y Mo- sheim v Pawn ( N Y City Ct), 18 N Y Supp 166, reversing an order of the special ter M 2 Thoesen v Crowe (Supreme Ct), 32 N Y St Rep 147, 19 Civ Pro Rep ( N Y) 74; Murray v Mabie (Supreme Ct), 28 N Y St Rep 308; Feeley z/ Manhattan, etc, RCo, 6 Civ Pro Rep ( N Y Super Ct) 414; Sherwood v Gardner, 5 Civ Pro Rep ( N Y C P I) 239 Where the answer sets up a general release, and also several defenses which are very general and indefi- nite, a bill of particulars as to the latter is properly ordere d Diossy v Rust, 46 N Y SupeRCt 374 Affirmative Defens e In an action for services performed under a written contract, where the answer denied that a true copy of the agreement was set forth in the complaint, and also alleged that the plaintiff had not per- formed the contract on his part, it was held that the denial contained in the answer was neither a general nor a special denial as required by the code; and it being therefore an affirm- ative defense, the plaintiff was en- titled to a bill of particulars of the difference between the copy of the agreement set forth in the complaint and the instrument as it should be given; and that particulars should be given of the alleged failure of the plaintiff to comply with this agree- ment. Sherwood v Gardner, 5 Civ Pro Rep ( N Y C P I) 239 Defense and Counterclai M The de- fendant may be required to serve a bill of particulars as to matter set forth in his answer, which states a defense only, as well as to matter set up as a counterclai M Kelsey v Sar- gent, loo N Y 602 Facts to Show Change of Capacit Y An order requiring the defendant sued as surety on an executor's bond to furnish a bill of particulars of the facts by reason of which the execu- tor, as alleged in the answer, ceased to act as such and became a trustee of the property, is in the discretion of the court. Cluff v Thompson, 54 N Y SupeRCt 398 Particulars of Losse S In a suit for conversion, where defendant denies the conversion and alleges that plain- tiff placed certain properties in his hands, and that certain heavy losses were incurred, the court in its discre- tion may order the defendant to fur- nish a bill of the particulars of the losse S Cunard v Francklyn, in N Y 511, 16 Civ Pro Rep ( N Y) 59 A broker who set up a similar de- fense to a suit by his client for an ac- count was required to furnish a bill of particular S Miller v Kent, 60 How Pr ( N Y Supreme Ct) 388 Payment and Accounting to AssignoRWhere the defendant alleges pay- ments to and an accounting with the plaintiff's assignor, of which plaintiff has no knowledge, a bill of particu- lars is properly ordere d Baremore v Taylor, 52 N Y SupeRCt 448 Times and Place S The plaintiff is entitled to a bill of particulars of the acts, times, and places referred to in the answeRRice v Rockefeller, 4 Civ Pro Rep ( N Y Supreme Ct) 303, i N Y Supp 222 Special Contra Ct Where an answer, in an action upon a quantum meruit, sets up a special contract and its per- formance by defendant, the plaintiff is entitled to a bill of particulars as to the time, place, and amount, with any other particulars of such special contra Ct Murray v Mabie, 55 Hun ( N Y) 38, 28 N Y St Rep 308, 8 N Y Supp 289 To the same principle, see Cunard v Francklyn, in N Y 511 Denying Novelty of Patent.

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In Reiner v Jones, 3 Post Date: Tue, 29 Jul 2008 0:45:51 +0000
In an ac- tion for royalties the names and resi- dences of persons by whom an inven- tion is claimed by defendants to have been used before patent, and a state- ment of the facts designed to be proven to show that the patents named in the contract were not valid and sufficient, may be ordered to be furnished by defendants setting up such defens e Hat Sweat Mfg Co z/ Reinoehl, 40 Hun ( N Y) 47- 1 Ward v Littlejohn (Supreme Ct), 25 N Y St Rep 340; Mercer v Sayre, 3 John S ( N Y) 248; Kelsey v Sargent, 100 N Y 602; Peabody v Cortada (Supreme Ct), 45 N Y St Rep 834, 18 N Y Supp 622; Reed v Third Reformed Dutch Church, ,7 W N C (Pa) 79; Rice v Annatt, 8 Gratt ( Va) 557; Conover v Knight, 84 Wi S 639 Counterclaim for Damage S Where, in an action by architects to recover for professional services rendered the defendant in the erection of a build- ing, defendant pleaded a counterclaim for damages, in which he alleged, in general terms, failure by plaintiffs to furnish detailed plans, specifications, and drawings for, and to superintend the erection of, such building, and serious errors in rough drawings used in the commencement of such struct- ure, the court required the defendant to make his counterclaim more spe- cific by particularizing the breaches of duty and mistakes complained of Conover v Knight, 84 Wi S 639 Particulars of Set-off The plaintiff may call on the defendant for the particulars of his set-off if they are not specified in the plea or the notic e Mercer v Sayre, 3 John S ( N Y) 248 Payment. Where the defendant in- terposes the defense of payment, a bill will not be require d Humphreys v Bridgman, MorR(Iowa) 167; Moody v Belden (Supreme Ct), 15 N Y Supp 119 Virginia and West Virginia Code S Under the codes of Virginia and West Virginia, specific or partial payments made after an action of assumpsit has been brought, and relied on in defense thereto, must be set forth in a bill of particulars; and if such payments are made before the suit, the bill must be filed with the ple A A general pay- ment, however, may be proved under the general issu e Shanklin v Crisa- more, 4 W Va 134 See also Rice v Annatt, 8 Gratt ( Va) 557 Informal Reply to Counterclai M The fact that a reply is very loosely drawn is no reason for refusing an order di- recting the defendant to furnish a bill of particulars of his counterclaim, since such reply cannot be consid- ered a nullit Y Ennis v Hosford (Brooklyn City Ct), 2 N Y Supp 649 ulars where the defense amounts to nothing more than a general denia L 1 3 Bill Unnecessar Y Since the sole office of the bill of particulars is to give the adverse party information which the pleadings by reason of their generality do not give, a party cannot be required to give the bill where the information sought is not necessar Y 2 Cross-claim for Service S Where the defendant, an administrator, put in a cross-claim for services rendered the plaintiff by the intestate, particu- lars were ordere d Mason v Ring, 10 Bosw ( N Y) 598 Time an Important Element. In Reiner v Jones, 3 Mis C Rep ( N Y SupeRCt) 406, an action for the rent of premises leased May i, 1892, where the defendant pleaded a cove- nant to keep the roof in repair, and, as a breach, that between January i, 1892, and before the commencement of the action, the roof leaked and damaged his goods, and also that plaintiff failed to repair the defect after notice, the plaintiff, on motion, was held entitled to a bill of particu- lars showing the dates on which the damage was sustaine d 1 Goddard v Pardee Medicine Co, 52 Hun ( N Y) 85, 5' N Y Supp 119, 22 N Y St Rep 540, 16 Civ Pro Rep ( N Y) 379; Gray v Shepard, 59 Hun ( N Y)622, 13 N Y Supp 27; Strebell v J H Furber Co, 2 Mis C Rep ( N Y City Ct)45o, 21 N Y Supp 1032; Bainbridge v Fried- lander (City Ct), 27 N Y Supp 261 In an action for money had and re- ceived, where defendant admits re- ceiving the money, but alleges that he paid it out for plaintiff's benefit, his answer is not in effect a general denial, and plaintiff is entitled to a bill of particular S Talman v Dorthy, 68 Hun ( N Y) 329, 22 N Y Supp 888 2 California Moore v Bates, 46 Ca L 29 Connecticut Vila v Weston, 33 Con N 42 Indiana McCoy v Oldham, I Ind App 372; Crane v Crane, 82 Ind 459; Wagoner v Wilson, 108 Ind 210; Adamson v Shaner, 3 Ind App 448 Louisiana Chapman v Hart, 8 La An N 35 Mississipp I Tierney v Duffy, 59 Mis S 364; Nevitt v Rabe, 6 Mis S 653 New York People v Monroe C P, 4 Wen d ( N Y) 200; Willis v Bailey, 19 John S ( N Y)268; Wigand z/ Dejonge, 18 Hun ( N Y)4O5; Bangs v Ocean Nat Bank, 53 How Pr ( N Y C P I) 51; La Sala v Lyon, 57 Hun ( N Y) 587, 19 Civ Pro Rep ( N Y) 71, II N Y Supp 31; Chese- borough -v Kimberly (Supreme Ct), 6 N Y Supp 623; Ross v Willett, 58 Hun ( N Y) 604, ii N Y Supp 621; Mertage v Bennett (SupeRCt), 15 N Y Supp 141; Bien v Hellman (SupeR Ct), 18 N Y Supp 860; McCarron v Sire, 14 Civ Pro Rep ( N Y City Ct) 252; Home Maker Co v Alley, 2 Mis C Rep ( N Y C P I) in, 20 N Y Supp 870; Stevens v, Webb, 4 Civ Pro Rep ( N Y C P I) 64; Fullerton v Gaylord, 7 Robt ( N Y) 551; Orvis v Dana, I Abb N Ca S ( N Y C P I) 268 Englan d Herlock v Lediard, 10 M W 677 Facts Admitte d Where the cost of a building is alleged in the petition and admitted in the counterclaim, it is error to require the defendant to furnish a detailed statement of the cost of the buildin g Conover v Knight, 84 Wi S 639 Account Alabama Cod e In an ac- tion on a promissory note the defend- ant has no right to demand a bill of particulars, under Code 1876, 2984, as the statute only provides for a bill of particulars where an account is the foundation of the suit.

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impersonation of the credit Post Date: Tue, 29 Jul 2008 0:30:44 +0000
Doss v Peter- son, 82 Ala 253 Separate and Distinct Claim S A complaint against a United States marshal and his sureties alleged in each of 144 counts the receipt by the marshal from the government of a specified sum of money earned by a certain deputy marshal, and his fail- ure to pay the same, and the assign- ment of this claim by the deputy mar- shal to plaintiff Held, that the counts showed separate and distinct claims, each being a single transaction, and the suit was not on an account so as to entitle defendants to a copy there- of Hagood v Blythe, 38 Fed Rep 76 Single Ite M Where the complaint Thus the bill cannot be required where the necessary information is contained in a special count in the pleading, although the gen- eral counts are also use d 1 The particulars sought must also relate to the matters in dispute ; if they concern only collateral matters the bill will not be require d 2 Likewise a bill should not be re- quired in relation to general charges which are irrelevant or im- materia L 3 sets out only one cause of action, in- cluding but a single item or claim, no bill- of particulars need be file d Brooklyn Gravel Road Co v Slaugh- ter, 33 Ind 185; Menzel v Tubbs, 51 Min N 364; Husson v Oppenheimer (Supreme Ct), 45 N Y St Rep 618; Lignoski v Crooker (Tex, 1893), 22 S W Rep 774 A bill of particulars is not necessary in a proceeding to recover a forfeiture of a miller for not posting up his rates of tol L Spencer v Medder, 5 Mo 458 Concealment of ' ' Part ' ' of Propert Y Where a complaint charges that de- fendants fraudulently disposed of and concealed part of their property, plain- tiff will not be required to furnish a bill of particulars as to what part was concealed, since a general denial would put all such allegations in issu e Constable v Hardenbergh (Supreme Ct), 27 N Y Supp 1022 Special Contra Ct In an action by a promoter of corporate enterprises for services under a special contract held, that a bill of particulars of each service contributing to the result should not be required, but only a specification of the purport, date, and signature of any writings involve d Fry v Manhattan Trust Co, 4 Mis C Rep ( N Y SupeRCt) 611, 53 N Y St Rep 566 Succession or Series of Act S Where a piece of work is accomplished by successive acts or a series of acts, each of which contributes to the com- pletion thereof, and there is no ordi- nary mode of measuring the compen- sation of such acts separately, the party claiming compensation for the work will not be required to furnish a bill of particular S Johnson v Mai- lory, 2 Robt ( N Y) 681 1 Vila z/ Weston, 33 Con N 42; Teb- betts v Pickering, 5 Cus H (Mas S) 83, 51 A M De C 48; People v Pearson, 2 111 473; Galloway v Trout, i Greene (Iowa) 595; Ford v Brown, i Colo265 But, although there are special counts, the defendant is still entitled to a bill of particulars, if, on their face, such special counts do not fur- nish specific informatio N Norris v Hanson, i W N C (Pa) 507 Reference to Another Count. A de- murrer to a count for money had and received, for want of a bill of particu- lars, cannot be sustained when there is a reference in the count to another count which contains particulars of the clai M Dorr v McKinney, 9 Allen (Mas S) 359 2 Thus, in a suit on an agreement the consideration of which was stated to be " sums of money, pieces of prop- erty, and accounts," no particulars of these should be ordere d Crane v Crane, 82 Ind 459 Connected with Other Transaction S Where an action was brought to re- cover damages for money paid to a third party by reason of false entries made in the books of the plaintiff by the defendants, and the defendants moved that the plaintiff file a bill of particulars of the false entries and the nature, character, and purpose thereof, the plaintiff could not be required to show how the entries were connected with other* transaction S Drake v Thayer, 5 Robt ( N Y) 694 Dealings with Third Part Y So, in an action for false .impersonation of the credit of a third person, the defend- ant was refused particulars of the dealings between the plaintiff and the third part Y Luck v Handley, 4 Exc H 486 Items Considered in an Accor d In an answer setting forth an accounting and agreement of amount du e it is not necessary to set forth the items then considere d Cunard -v Franck- lyn (Supreme Ct), I N Y Supp 877 3 Kemmercer v Hoffman, 7 Pa Co Ct Rep 429; Marryott v Young, 33 N J L 336 Real Estate Commissio N In an action by a broker for damages for the breach of an alleged contract to pay a certain commission for procuring a purchaser 4 Facts Already Know N A party will not be obliged to fur- nish facts already known to his adversar Y 1 Nor will a bill of particulars be ordered when the means of ascertaining the facts are equally accessible to both partie S 2 of property at a designated price, a bill of particulars, stating when and where and by whom the alleged sale was made, will be denied where the complaint does not allege a sale, but only that a person willing to purchase had been foun d Foley v Jennings ( C PL), 29 N Y Supp 24 The Heal Issu e It seems that the failure of a plaintiff to serve a copy of an account, in an action for goods sold, is immaterial where the sale is not put in issue, but only the liability of the answering defendant as a part- ner in the firm to which the goods were sol d Gebhard v Squier (SupeR Ct), 10 N Y St Rep 255; Gebhard v Parker, 120 N Y 33, 18 Civ Pro Rep ( N Y) 244, 30 N Y St Rep 1 80 Bes Adjudicat A A complaint al- leged that plaintiff was expelled from the New York Stock Exchange and deprived of his valuable rights as a member thereof, without any viola- tion on his part of the rules of the as- sociation, contained in a constitution to which plaintiff pledged himself to be bound, and which provided that any member guilty of obvious fraud, of which the governing committee should be judge, should, on conviction, be expelle d Held, that, the issue being whether the action of the governing committee was res adjudicata, a motion for a bill of particulars as to the of- fenses charged as obvious fraud was properly denied, as that question was immaterial to the issue made by the pleading S Solomon v McKay, 49 N Y SupeRCt 138 Difference in Value of Goods Ex- change d The complaint alleged de- fendant's indebtedness to plaintiff in a specified sum for difference in value between goods and certain real estate given in exchange therefor by de- fendant, which sum defendant had promised to pa Y Held, that no bill of particulars was necessar Y Sharp v Radebaugh, 70 Ind 547 Writing not Foundation of Suit.

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Anything that does this, whether Post Date: Tue, 29 Jul 2008 0:13:56 +0000
A party is not bound to furnish his ad- versary with a copy of any record or writing which is not the foundation of his suit or clai M Marryott v Young, 33 N J L 336 1 Train v Friedman, 4 Civ Pro Rep ( N Y Supreme Ct) 109; Mas- terson v New York, 4 Civ Pro Rep ( N Y Supreme Ct) 317; Cohn v, Baldwin, 74 Hun ( N Y) 346, 56 N Y St Rep 379, 60 N Y St Rep 337; Perzel v Shook, 50 N Y SupeRCt 206, 5 Civ Pro Rep ( N Y) 397 Equal Knowledg e If a party fully knows what his adversary means to rely upon for his cause of action or defense, he is not entitled to a bil L Willis v Bailey, 19 John S ( N Y) 268; Wigand v Dejonge, 18 Hun ( N Y) 405; Isaac v Wilisch, 69 Hun ( N Y) 339; Stevens v Webb, 4 Civ Pro Rep ( N Y C P I) 64; Hayes v Davidson, 33 Hun ( N Y) 446; Dono- hue v Meares (Supreme Ct), 19 N Y Supp 585 Account between Partner S In a suit for an account between partners after dissolution, it was held that, unless the claim was for moneys contributed to or paid to the firm, not evidenced by or intelligible from the entries upon the books of the firm, one part- ner was presumed to have as much knowledge of the details of the firm as the other, and a bill of particulars was refuse d Depew v Leal, 5 Duer ( N Y)663 Peculiarly Known to Applicant. Where information sought lies pe- culiarly within the knowledge of one asking a bill of particulars, his re- quest will not be grante d Fink v Jetter, 38 Hun ( N Y) 163 In an action on an alleged contract to pay ten per cent of the amount re- ceived by defendant on certain life- insurance policies plaintiff will not be required to furnish a bill, as the facts relating to the making of the contract and the collection of the money are within the defendant's knowledg e Hawes v Foote (City Ct), 29 N Y Supp 680 2 Butler v Mann, 9 Abb N Ca S ( N Y Supreme Ct) 49; Hayes v Davidson, 15 Abb N Ca S ( N Y Su- preme Ct) 85, 33 Hun ( N Y) 446; Young v DeMott, i Barb ( N Y) 30; Petitio Principi I But a bare suggestion that the applicant knows the facts is not sufficient to defeat his right to a bill of particulars where the parties are at issue on those fact S 1 5 Impossibility or Uncertaint Y A bill of particulars will not be required when it is not in the power of the party to furnish one, 8 or when, from the nature of the case, the knowledge sought can- not be expected to be given with certaint Y 3 Blackie v Neilson, 6 Bosw ( N Y) 681; Donohue v Meares, 65 Hun ( N Y) 620, 19 N Y Supp 585; Lusbie v Meares, 65 Hun ( N Y) 620, 19 N Y Supp 586; Faxon v Ball, 67 Hun ( N Y) 649, 21 N Y Supp 737; Isaac v Wilisch, 69 Hun ( N Y) 339; People v Tweed, 50 How Pr ( N Y Ct of App) 38, 5 Hun ( N Y) 353; Powers -v Hughes, 39 N Y SupeRCt 482; Phillips v Ehrman, 4 Mis C Rep ( N Y) 285, 23 N Y Supp 1030; Powers v Snedecker, 5 N Y Month L Bul L 22; Heft v Jones, 9 W N C (Pa) 541; U S v Tilden, 10 Be N (U S) 547 Action against Suretie S In the ab- sence of anything to indicate that the defendant's sureties on official bonds could not as well as the plaintiff have ascertained facts relative to moneys received by the principal, an applica- tion for a bill of particulars should be denie d Butler v Mann, 9 Abb N Ca S ( N Y Supreme Ct) 49 Public Account S In an action on a county treasurer's bond it is within the discretion of the court to deny the defendants' demand for a copy of the items of account mentioned in the complaint, such accounts being public accounts, which it does not appear were not equally accessible to defend- ants as to the plaintiff Ferry v King County, 2 Wash 337 1 Tilton v Beecher, 59 N Y 176, 17 A M Rep 337; Friedberg v Bates, 3 N Y Month L Bul L 4; Murray v Mabie, 55 Hun ( N Y) 38, 28 N Y St Rep 308 2 Rossman v Bock, 97 Mich 430; Chandler v Stevens, 2 N Y Month L Bul L 5; Ammidown v Century Rubber Co, 59 N Y SupeRCt 460, 39 N Y St Rep 350; Dueber Watch Case Mfg Co v American Waltham Watch Co (Supreme Ct), 51 N Y St Rep 459, reviewing 29 Abb N Ca S ( N Y) 412; Mosheim v Pawn (City Ct), 44 N Y St Rep 792; United Building, etc, Bank v Bartlett, 2 Mis C Rep ( N Y City Ct) 479, 51 N Y St Rep 159; Blackie v Neilson, 6 Bosw ( N Y)68 I Affidavit of Inabilit Y No person should be required, on pain of strik- ing his pleadings from the files, to state particulars which he swears that he cannot furnish, when he gives suffi- cient reasons for his inabilit Y Wheel- ock v Barney, 27 Ind 462; Mosheim v Pawn (City Ct), 18 N Y Supp 166 But he should first comply with an order for a bill to the extent of,fur- nishing such items as it is in his power to furnis H Rochester v Mc- Dowell, 59 Hun ( N Y) 615 Where Discovery Necessar Y Where a plaintiff cannot safely give a bill of particulars without a discovery, he should not be compelled to give one; but he must take steps to obtain the discovery with all convenient spee d Young v De Mott, I Barb ( N Y) 30 Information in Books of Adversar Y A bill of particulars will be denied where plaintiff in his opposing affi- davit states that his demand appears in the defendant's books of account, that the only information plaintiff has is from the statements furnished by defendant, and that it will not be pos- sible for plaintiff to furnish all the particulars demanded, unless defend- ant permits plaintiff to examine such book S Cohn v Baldwin (Supreme Ct), 26 N Y Supp 457 3 Suit for Income Ta X As in an ac- tion for the arrears of income tax, where the amounts to be recovered depend upon the amount of the de- fendant's income, of which the plain- tiff has not yet had discover Y U S v Tilden, 10 Be N (U S) 547 Unascertained Damage S In an action for damages to a house by an explo- sion in the defendant's oil works, it was said: " This is not a case where the plaintiff should be required to furnish particular S The action is for damages which the plaintiff can- not specify with certainty; the amount will depend on proof to be furnished after examination of the injuries, and V I FORM AND REQUISITES 1 Generall Y It is well settled that a bill of particulars need not follow any particular for M All that is necessary is for the bill to give in a clear and definite manner the information sought. Anything that does this, whether it be in the technical form of a bill of particulars or not, will usually suffic e 1 This rule has been frequently applied where the suit was upon accounts or promissory notes or other negotiable instru- ment S 2 may well consist of the testimony of expert S" Muller v Bush, etc, Mfg Co, 15 Abb N Ca S ( N Y Supreme Ct) 88 1 Williams v Allen, 7 Co W ( N Y) 316; Chicago, etc, RCo v Beh- ney, 48 Ka N 47 Abbreviation S A bill of particulars containing abbreviations is sufficient.

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Copas v Anglo- American Provision Post Date: Tue, 29 Jul 2008 0:00:07 +0000
Harris v Christian, 10 Pa St 233 Affidavit. Where the plaintiff, in an action for legal services in a matter before the United States treasury de- partment, on motion for a bill of par- ticulars, filed an affidavit stating in general terms his services, for which he charged a gross sum, and showing that he had filed three briefs with the commissioner of internal revenue, had presented to him a written peti- tion, had made several oral state- ments to him, had appeared before the deputy commissioner and solici- tor several times, had made all argu- ments, had seen the solicitor-general several times, and had filed a brief with him the affidavit itself should stand for a bill of particular S Thomp- son v Knickerbocker Ice Co ( C P I), 16 N Y St Rep 738, 2 N Y Supp 18 Account File d Under the Virginia statutes, an account filed in an action of indebitatus assumpsit, which gives notice of the character of the claim, is sufficient, though made up of vari- ous items of which no notice is give N Moore v Mauro, 4 Ran d ( Va) 488 Extra Wor K A bill of particulars of extra work performed in connec- tion with a contract, filed with and as part of a complaint, shows clearly enough what the items of work are, without a direct allegation as to such item S Burnham v Milwaukee, 69 Wi S 379 Bank Boo K In a suit against a bank for the balance of a deposit, the plain- tiff attached to his affidavit of claim the bank book written up by the de- fendants, containing their own en- tries, and showing from their own figures the balance du e This was held to be a full bill of particulars, and none the less so by being sworn t O Chicago Bank v Hull, 74 111 106 Dollars and Cents Implie d A bill of particulars in a justice's court, in the form of a running book account, is sufficient, although the figures in- tended to represent dollars and cents may not be designated in express terms, but only by implication, as dollars and cent S Bancroft v Ad- yeo, 22 Ka N 32 Oral Pleadin g In an action before a justice of the peace, where the pleadings were oral, a statement that plaintiff counted specially for loss and damages sustained by reason of dam- aged and unwholesome meats and provisions, accompanied by a bill of particulars which showed hams re- turned as spoiled, and hams totally spoiled, and hams returned by one to whom plaintiff had sold them was held sufficient. Copas v Anglo- American Provision Co, 73 Mich 541 Affidavit in Replevi N In an action of replevin in a justice's court the plaintiff may, if he chooses, use and treat his affidavit for the summons and order for delivery as a bill of particular S Sharr v Hinshavv, 23 Ka N 532 Memorandum Chec KT A copy of a memorandum check, filed as a bill of particulars, is a sufficient one under a count for money lent.

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Stanley v Stevens, 2 Post Date: Mon, 28 Jul 2008 23:45:46 +0000
Dean v Mann, 28 Con N 352 Bill without File M Ark When a bill of particulars is referred to in the pe- tition as a part thereof it ought to be marked " filed; " but permission to read it without being so marked is not error for which the Supreme Court will revers e Waul v Hardie, 17 Tex 553 2 Account S Where an account has been already rendered, the party may refer to it in his uill without restating 2 Definiteness in Genera L While a bill of particulars certainly need not state more than the party furnishing it is bound to prove under his pleading, 1 it must be as specific as the circum- stances of the case will allow, and should fairly apprise the op- posite party and the court of the nature of the claim or defense made and the nature of the evidence to be offere d 2 the same items, and this will be suffi- ciently definit e Goodrich v James, I Wen d ( N Y) 289 In a Suit on Notes the bill of par- ticulars usually states the money due on them and describes them, but it may give copies of the note S Sto- wits v Troy Bank, 21 Wen d ( N Y) 1 86 A note with indorsements was held to be a bill of particulars in Brenner v Weaver, I Ka N 456 Where the defendant's attorney re- quested of the attorney for the plain- tiff a bill of particulars, and the lat- ter attorney wrote to the former that the claim was on a note specified in the declaration, and no order for a bill was obtained, the plaintiff was bound by the letter as a bill of par- ticular S Williams v Allen, 7 Co W ( N Y) 316 In an action for the balance of a banknote, a schedule of the dates and amounts of the deposits is suffi- cient. In S Co v Bank, 12 W N C (Pa) 251 1 Matthews v Hubbard, 47 N Y 428; Rochester -v McDowell (Supreme Ct), 12 N Y Supp 414 2 Arkansa S Moore v Estes, 23 Ark 152, Walker v Fuller, 29 Ark 448 California Conner v Hutchinson, 17Cal279 Connecticut McVane v Williams, 50 Con N 548 Kansa S Missouri, etc, RCo v Brown, 14 Ka N '557 Massachusett S Babcock v Thomp- son, 3 Pic K (Mas S) 446 Michiga N Wright v Dickinson, 67 Mich 580, II A M St Rep 602 Mississipp I Soria v Planter's Bank, 3 How (Mis S) 46; St Louis, etc, RCo v Previne, 61 Mis S 288 New Jerse Y Tillou v Hutchinson, 15 N J L 178; Stothoff v Dunham, 19 N J L 121 New York Moran v Morrissey, 18 Abb Pr ( N Y C P I) 131, 28 Ho W Pr ( N Y) 100; Dueber Watch Case Co v American Waltham Watch Mfg Co, 29 Abb N Ca S ( N Y Su- preme Ct) 412; Wetmore v Jennys, I Barb ( N Y) 53; Seaman v Low, 4 Bosw ( N Y) 337; Humphrey v Cottley, 4 Co W ( N Y) 54; Stanley v Millard, 4 Hill ( N Y) 50; Kellogg v Paine, 8 How Pr ( N Y Supreme Ct) 329; Bangs v Ocean Nat Bank, 53 How Pr ( N Y C P I) 51; Drake v Thayer, 5 Robt ( N Y)6g4; Brown v Williams, 4 Wen d ( N Y) 368; Smith v Hicks, 5 Wen d ( N Y)48; Matthews v Hubbard, 47 N Y 428 Pennsylvania Gilpin v Howell, 5 Pa St 41 United State S Chesapeake, etc, Canal Co v Knapp, 9 Pet (U S) 541; Garfield v Paris, 96 U S 557 Englan d Prichard v Nelson, 16 M W 771 Gist of the Deman d A bill of par- ticulars must be sufficiently full to disclose the gist of the plaintiff's de- man d Gilpin v Howell, 5 Pa St 411, i T H Pr (Pa) 425 On a Claim for a Way Growing Crop the bill of particulars should state the kind of crop and the number of acres cultivate d O'Connell v Sum- mer S 5 W: N C (Pa) 149 Instances of Sufficient Bills "As per Contra Ct" A statement of work done "as per contract" is not too indefi- nit e Johnson v Cummisky, 8 W N C (Pa) 357; Newlin v Armstrong, 8 W N C 255 "And Others'' 1 "One or Mor e" In an action between partners the com- plaint set out that, in the absence of plaintiff, defendant maliciously wrote letters to four consignors of the firm, naming them, "and others," repu- diating contracts already made, and that the effect of the letters was that "one or more of said consignors " withdrew their consignments to plain- tiff's damage, etc Upon the plaintiff being required to serve a bill of par- ticulars in explanation of the phrases, " and others " and " one or more of said consignors," it is sufficient if he names some manufacturers, and states that the persons referred to were all Assigned Clai M And where a party sets up an assigned claim, he fendant, is not sufficient. Stanley v Stevens, 2 N Y Month L Bul L 5 Business for a Certain Ti Me Plain- tiff alleged that he had been injured by his partner's conduct, " independ- ent of any alleged loss or profit shown by the books of the firm as resulting from the said business " of the fir M He was required to serve a bill of particulars of the damage S The bill set out that the damages were made up of certain percentages of " busi- ness " for a certain ti Me This was not sufficiently certain, the business not being indicated with clearnes S Church v Spiegelberg, 33 Fed Rep 158 "Divers Sums" "Divers Person S" A clause in a bill of particulars stat- ing that the defendant had received "divers other sums of money of divers persons" is too genera L Whit- all v Vaughn, 3 N J L 472 Kansas Justice of the Peac e Un- der Kansas Comp Laws, 1879, 4, C 105, a bill of particulars in a justice's court which does not state sufficient facts to constitute a cause of action is fatally defectiv e Barrackman v Girard, 26 Ka N 284 Lost Book S Where plaintiff, be- cause of the destruction of his books by fire, was unable to render an exact bill of particulars, it was his duty to furnish the most specific statement that he coul d Isham v Parker, 3 Wash 775 Unable to Rea d A bill in the fol- lowing form is insufficient: " A W to CB, D R: To moneys received by the said W for and belonging to the saidB, at different times during the years 1840, 1841," etc, "and in various sums, viz.

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lance Du e In an action Post Date: Mon, 28 Jul 2008 23:32:35 +0000
, $200, fioo," etc, " in all amounting to $1400," " but in what particular months or on what particular days of such months the saidB 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 W well knows the dates at which said sums were respectively received, as he left said W to keep the accounts, being himself unable to read or writ e" Bates v Wotkyns, 2 Ho W Pr ( N Y) 18 Articles "to be Furnishe d" In an action to foreclose a lien upon a building for fixtures furnished in its construction held, that a schedule customers of the firm, and that their names would appear from the books in the possession of the defendant S Church v Spiegelberg, 33 Fed Rep 158 Definite as an Invoic e It is enough that the bill be as full as is customary among merchants when they have previously sent invoice S Freehling v Ketchum, 39 Mich 299 Particularity a Matter of Discretio N The particularity or minuteness re- quired in a specification under the general counts, there being no vari- ance, is a matter of practice and dis- cretion, and not a ground of erroRHodges v Rutland, etc, RCo, 29 Vt 220 Single Ite M A statement, " 1873 Au g 30 To merchandise, $11450," has been held a sufficient bill of par- ticular S Hays v Samuels, 55 Tex 560 Short Form of Pleadin g A special contract may be proved under the short form of pleading, when the complaint has attached to it a bill of particulars as special as that required under the old rules of pleadin g Rob- erts v Harris, 32 Ga 542 Use and Occupatio N "For ware- house room furnished by the plaintiff for the storage of an engine, the prop- erty of the defendant, between cer- tain dates" held, sufficient in an ac- tion for use and occupatio N Taylor v Dexter Engine Co, 146 Mas S 613 Instances of Insufficient Bills Amount Advance d A bill of particulars should state how the items claimed became du e Thus a bill of particulars which states the items as an "amount ad- vanced " is defectiv e Moran v Mor- rissey, 18 Abb Pr ( N Y C P I) 131, 28 How Pr ( N Y) lo O "Balance from Former Account" is insufficient. Buckner v Meredith, I BrewSt (Pa) 306 B .lance Du e In an action for an account for merchandise sold and de- livered, a bill of particulars, one of the items of which is "To balance due in cash, $600," is not sufficiently specifi C Ralston v Aultman (Tex, 1894), 26 S W Rep 746 Charges for Cas H A bill of particu- lars containing several charges for cash in different sums, without stat- ing whether the money was lent to, paid out for, or received by the de- should be required to furnish such a bill of particulars as would be exacted from his assignor under the same circumstance S 1 Time is important, and should be stated with as much particu- larity as possibl e 2 TeSt One test of the sufficiency of the bill of particulars, sus- tained by authority, is to inquire whether it states the facts neces- sary in common-law pleading to constitute a good indebitatus count in Debt 3 3 Verification By statut e It is sometimes provided by statute that where an original pleading is verified, a bill of particulars of the matters therein stated must also be verifie d 4 Order of Court.

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Living- ston v Enochs, 2 Post Date: Mon, 28 Jul 2008 23:13:28 +0000
When, however, a bill of particulars is served pur- suant to an order of court which is silent upon the question, veri- fication is not necessar Y 5 Waiver of Objectio N Objection to the want of verification is purporting to be of articles " to be furnished," was not a proper or suffi- cient bill of particular S Iden v Os- born, 23 N Y Wkl Y Di g 569 Absence of Client as an Excus e An attorney's statement that his client was away is not a sufficient excuse for furnishing a vague bil L Bare- more v Taylor, 52 N Y SupeRCt 1 Fuchs v Morris, 64 Hun ( N Y) 635, 18 N Y Supp 898 2 Goodwin v Walls, 52 Ind 268; Mugan v Haley, 16 Kani 68; Wet- more v Jennys, i Barb ( N Y) 53; Humphrey v Cottley, 4 Co W ( N Y) 54; Kellogg v Paine, 8 How Pr ( N Y Supreme Ct) 329; Quin v Astor, 2 Wen d ( N Y) 577; Graham v Gra- ham, i W N C (Pa)4i6; Livingston v Enochs, 2 W N C (Pa) 244 But an error in the date is unimpor- tant if it does not mislea d Mugan v Haley, 16 Ka N 68; Milwood v Waker, 2 Taunt 224 ' ' Divers Times ' ' between Certain Dates as a designation of the time when a certain sum was paid for services rendered by the plaintiff, at the de- fendant's request, is not sufficiently specifi C Morgan -v Burrough ( N J, 1887), 8 Al L Rep 517 Dates Omitte d Where the items were given as "Damages, $5000; Bal- ance due on settlement, $5000; Money received at New Orleans on account of plaintiff, $5000," and without dates, this was held an insufficient bil L Wet- mole v Jennys, i Barb ( N Y) 53 But see Livingston v Enochs, 2 W N C (Pa) 244 stated as "on or about " a certain day; and in that case the plaintiff is not restricted to proof of that special da Y Duncan v Ray, 29 Wen d ( N Y) 530 Videlicet. It is not sufficient to lay the time within a videlicet. Living- ston v Enochs, 2 W N C (Pa) 244 3 Wilkins v Stidger, 22Cal235; Abadie v Carrillo, 32Cal172; Magee v Kast, 49Cal141; Allen v Patter- son, 7 N Y 476; Morrow v Cougan, 3 Abb Pr ( N Y C P I) 328 In Gilpin v Howell, 5 Pa St 41, and Babcock v Thompson, 3 Pic K (Mas S) 446, 15 A M De C 235, it was held that a bill of particulars ought to state the gist of the action as clearly as a special count; and in Wetmore v Jennys, i Barb ( N Y) 53, and Chi- cago, etc, RCo v Provine, 61 Mis S 288, that it should be more defi- nite than the claim set forth in the pleadin g But in Smith v Hicks, 5 Wen d ( N Y) 51, and Chesapeake, etc, Canal Co v Knapp, 9 Pet (U S) 541, it was held that a bill need not be as special as a count on a special con- tract; and that it was sufficiently defi- nite if it apprised the other side of the evidence that was to be offered, so that he could intelligently prepare to resist the clai M 4 Dennison v Smith, iCal437; Withers v Toulmin, 13 Civ Pro Rep ( N Y City Ct) i, 10 N Y St Rep 704; McCarron v Sire, 14 Civ Pro Rep ( N Y City Ct) 252; Paine v Smith, 32 Wi S 335 5 Shankland v Bartlett, 13 Civ Pro Rep ( N Y Supreme Ct) 24 waived by silently retaining the bill * and withholding the ob- jection until time for tria L 8 4 Objections for Defect S If the bill of particulars fairly conveys the information desired and performs the offices above described, technical inaccuracies and errors, or discrepancies which do not mislead or prejudice will be disregarde d 3 On or after Tria L An objection to the sufficiency of a bill of par- ticulars cannot be made on the trial 4 or afterward S 5 VI I MORE SPECIFIC BILL 1 Generall Y Where the bill of par- ticulars is not sufficiently explicit, a motion should be made to the court for a more specific bill; 6 the objection cannot be taken by 1 Hoag v Weston, 10 Civ Pro Rep ( N Y Supreme Ct) 92, 24 N Y Wkl Y Di g 91; Paine v Smith, 32 Wi S 335 2 Dennison v Smith, iCal437 3 Chicago, etc, RCo v Conklin, 32 Ka N 55 See also Tillou v Hutch- inson, 15 N J L 178; Stothoff v Dunham, 19 N J L 181 An Account Sued on, however in- artistically drawn, is good if the de- fendant can learn therefrom the nat- ure of the demand, so as not to be misled in the preparation of his de- fens e Moore v Estes, 23 Ark 152; Missouri, etc, RCo v Brown, 14 Ka N 557; Stothoff v Dunham, 19 N J L 181; Tillou v Hutchinson, 15 N J L 178 NonjoindeRWhere one of several joint debtors is sued alone and does not plead the nonjoinder in abate- ment, but pleads in bar, the bill of particulars may run against him with- out mentioning his codebtor S Gay v Gary, 9 Co W ( N Y) 44 Mistake in Na Me When the pay- ment made, in an account of the de- fendant to A was stated to have been made to B, it was held to be immate- rial, unless the defendant would make affidavit that he was misled by the particular, i Camp b 169, not e Partnership Informally Show N A bill of particulars, in the name of certain parties plaintiff, as partners, which describes them as partners, and al- leges that by their firm name (giving it) they drew a draft on the defend- ant, which he accepted, a copy of the draft with the acceptance indorsed thereon being attached to the bill, which also alleges that the defendant has not paid the same, and that it is now due the said plaintiffs, is suffi- cient, even though there be no dis- tinct and formal averment that the plaintiffs were partner S Campbell v Blanke, 13 Ka N 62 Technically Inaccurat e A bill of particulars need not be technically accurate; it cannot be demurred to; it is sufficient if it gives the necessary information; and if the defendant is not satisfied with it he must move to have it more specifi C Vila v Weston, 33 Con N 42; Jacobi v Pfar, 25 Ark 4 The Only Valid Objection to a bill of particulars is that it fails to give due information as to the matter inquired of Matthews r /Hubbard, 47 N Y 428 4 Dennison v Smith, iCal437; Buckeye T P v Clark, 90 Mich 432; Minneapolis Envelope Co v Van- strom, 51 Min N 512; Barnes v Hen- shaw, 21 Wen d ( N Y) 426 5 Nothe v Nomer, 54 Con N 326; Pierce v Baird, 48 Ind 378; Davis v Jenkins, 14 Ind 572; Gossett v Pat- ten, 23 Ka N 340 6 California Conner v Hutchin- son, 17Cal279; Providence Tool Co v Prader, 32Cal634 Illinoi S McCarthey v Mooney, 41 111 300 Indiana Goodwin v Walls, 52 Ind 268; Bartholomew County v Ford, 27 Ind 17 Michiga N Buckeye T P v Clark, 90 Mich 432 Minnesota Minneapolis Envelope Co v Vanstrom, 51 Min N 512 New York Gas-Works ConSt Co v Standard Gas Light Co (Supreme Ct), i N Y Supp 265; Schile v Brok- hahne, 41 N Y SupeRCt 254; Good- rich v James, i Wen d ( N Y) 289; Barnes v Henshaw, 21 Wen d ( N Y)426; Purdy v Warden, 18 Wen d ( N Y)67i; Virtue v Beacham (City Ct), 17 N Y Supp 450; Ward v Littlejohn (Supreme Ct), 6 N Y Supp 170 demurreR1 A defective bill cannot be treated as a nullity where there has been no call for a more specific on e 3 2 Motio N The motion should point out the matter in respect to which further specification is required, 3 and should not call for more than the original ordeR4 It should be made even where the party has omitted entirely the particulars of one of his several causes of action ; 5 or where the party appears to act in good faith after a peremptory order, but furnishes an unsatisfactory bil L 6 The motion is addressed to the sound discretion of the court.

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H Pr Post Date: Mon, 28 Jul 2008 22:54:53 +0000
7 Pennsylvania Hunter v Burn- ham, i W N C (Pa) 74; Winpenny v Winpenny, I W N C (Pa) 90; O'Connell v Summers, 5 W N C (Pa) 149; McClain v Henry, i T H Pr (Pa) 425; Sargent v Gilbert, I T H Pr (Pa) 426; Brown v Bradford, I T H Pr (Pa) 426; Titus v Baird, i W N C (Pa)8i; Patterson v Jones, i W N C (Pa) United State S Fuller v Claflin, 93 U S 14; Chesapeake, etc, Canal Co v Knapp, 9 Pet (U S) 541 1 Bartholomew County v Ford, 27 Ind 17 Bill Filed with AnsweRA demurrer will not reach the defects in a bill of particulars filed with the answer if the latter is sufficient on its fac e Bougher v Scobey, 16 Ind 151 Vaguenes S A bill of particulars cannot be demurred to as vagu e Abell v Penn Mut L In S Co, 18 W Va 401 Entire Omissio N Where in an action of assumpsit the declaration contained only a count for money had and re- ceived, the omission to file with it a bill of particulars was held a cause for special demurreRCregier v Smyth, i Spears ( S Car) 278 2 Providence Tool Co v Prader, 32 Ca L 634, 91 A M De C 598 3 Conner v Hutchinson, 17Cal279; Wiggins v Guthrie, 101 N Car 661; Kellogg v Paine, 8 How Pr ( N Y Supreme Ct) 329 4 If an order for a further bill of particulars requires more than the original order, in so far as it does it should be modified on appea L Mason v Ring, 10 Bosw ( N Y) 598 5 Virtue v Beacham (City Ct), 17 N Y Supp 450 6 Purdy v Warden, 18 Wen d ( N Y) 671, holding that if the bill had been clearly evasive, the defendant could have applied for judgment of non pro S 1 Schile v Brokhahne, 41 N Y SupeRCt 353; Langdon v Brown, 51 N Y SupeRCt 367; Ward v Lit- tlejohn (Supreme Ct), 6 N Y Supp 170; People v Nolan, 10 Abb N Ca S ( N Y Supreme Ct) 471 "Agreement," "Sundry Services," etc In an action to set aside certain transfers of property made by the de- fendants to one another they were ordered to furnish a bill of particu- lars, specifying what the considera- tion for the transfers was and the amount, if in mone Y The defend- ants answered two of them, that the consideration paid or received by them was an agreement for the com- mon stock of one of the defendants; the third, that he paid services ren- dered in and about certain business in which he and his vendor were in- terested, and made an agreement to perform other service S The court held that such bills served did not comply with the order, and that plain- tiffs' motion for additional bills should be grante d Where an order of court required the particulars of the consideration for certain transfers of property, it was held that a speci- fication of an "agreement" without stating the terms thereof, and of sun- dry services in various matters, with- out stating the services or matters, was insufficient, a'nd a motion for a further bill was grante d Gas-Works ConSt Co v Standard Gas Light Co, 48 Hun ( N Y) 621, i N Y Supp 265 Requirement of Dates, etc Where, in a bill of particulars filed with a pleading, the account set out con- sisted of the fees of a district at- torney in a number of cases, and the items were merely statements of the names of the parties in each case, with the amount of the fee carried out in figures, a motion of the adverse party to require the pleader to make such bill more specific, by giving the dates of the prosecutions and the VII I AMENDMENT S A bill of particulars becomes a part of the pleading to which it refers, and is amendable in like manner and effe Ct 1 At common law, however, it seems that a bill of par- ticulars could not be amended without leave of the court. 2 courts in which they were prose- cuted, presented a reasonable re- quest, and should have been sus- taine d Goodwin v Walls, 52 Ind268 1 Colorad O Ford v Brown, I Colo265; Phelps v Spruance, i Colo414 Connecticut Grether v Klock, 39 Con N 135 Georgia Fielder v Collier, 13 Ga 496 Kansa S Wooster v McKinley, i Ka N 317; Alvey v Wilson, 9 Ka N 401; Hanlin v Baxter, 20 Ka N 134; Missouri Pac RCo v Piper, 26 Ka N 58; Neifert v Ames, 26 Ka N 517; School DiSt No 73 v Dudley, 28 Ka N 160; Kansas City, etc, RCo v Hays, 29 Ka N 193; Teberg v Swenson, 32 Ka N 224 Maine Towle v Blake, 38 Me 528 Massachusett S Babcock v Thomp- son, 3 Pic K (Mas S) 446, 15 A M De C Michiga N Collins v Beecher, etc, Rolling Mill Co, 45 Mich 436; Mead v Glidden, 79 Mich 209; Lester v Thompson, 91 Mich 245; Tate v Hamilton, 81 Mich 221 Mississipp I Bloom v McGrath, 53 Mis S 249; McClearyv Anthony, 54 Mis S 708; Summers v Brady, 56 Mis S 10 New Jerse Y Tillou v Hutchin- son, 15 N J L 178 New York Spawn v Veeder, 4 Co W ( N Y) 503, 15 A M De C 401; Bates v Wotkyns, 2 How Pr ( N Y) 18; Melvin v Wood, 3 Keyes ( N Y) 533, 3 Abb App De C ( N Y) 272; Case v Pharis, 106 N Y 114 Pennsylvania Hartel v Seibert, I T. H Pr (Pa) 424; Bowen v Blevin, i W N C (Pa) 508 West VirginiaAnderson S Kana- wha Coal Co, 12 W Va 526 Wisconsi N Cudworth v Gaynor, 76 Wi S 296 United State S Chesapeake, etc, Canal Co v Knapp, 9 Pet (U S) Englan d Staples v Holdsworth, 4 Bin g N Ca S 717 Abandonment of Bill at Tria L Where a plaintiff who has filed a bill of par- ticulars gives notice at the trial that he intends to rely solely on the count for an account stated, such notice operates as an amendment of the pleading and an abandonment of the bill of particulars, and entitles him to prove his case under said count.

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Tate v Hamilton, 81 Mich Post Date: Mon, 28 Jul 2008 22:39:53 +0000
Waidner v Pauly, 141 111 442 Adding Items at Tria L Where speci- fications are not legally necessary to the defendant's right of recovery un- der his plea in set-off, especially in a trial before a referee, and where in a trial by the jury specifications are not usually a necessary part of the pleading, and when, under such cir- cumstances, they are furnished under order of the court, how far a party shall be limited by them rests largely in the discretion of the court. Items may be added during the trial, unless such addition operates to surprise or otherwise prejudice the other party and place him at a legal disadvantage in the tria L Lewis v Jewett, 51 Vt 378 Oppressive Term S Where a formal amendment to avoid variance in a bill of particulars as to the date of a par- ticular transaction could not have sur- prised defendant, it was held an abuse of discretion to require payment of costs and consent to a continuance as a condition to the allowance of the amendment. Tate v Hamilton, 81 Mich 221 Amendment Eendered Unnecessar Y But there is no necessity of amend- ing the bill of particulars where the declaration is amended so as to in- clude all that could be set up in a bill of particular S Feiertag v Feiertag, 80 Mich 489 Not within Scope of Declaratio N The bill of particulars should not be amended so as to embrace matter not within the scope of the declara- tio N Chicago, etc, RCo v Pro- vine, 61 Mis S 288 Striking out Part.

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