Laws

Alabama Thompson v Drake Post Date: Tue, 29 Jul 2008 3:24:54 +0000
Price v Powell, 3 N Y 322 Improper Bil L Where the bill of ex- ceptions is drawn up in disregard of settled rules of law, it fails to present exceptions in such wise as to be re- viewable, and judgment will be af- firme d Hanna v Maas, 122 U S 24; Suydam v Williamson, 20 How (U S)427- Against the Appellant. The rule as usually stated is that the bill of ex- ceptions will be most strongly con- strued against the appellant. Alabama Thompson v Drake, 32 Ala 99; Mallory v Stodder, 6 Ala 801; Patton v Hayter, 15 Ala 18; Donnell v Jones, 17 Ala 689; Per- minter v Kelley, 18 Ala 716; Mitchell v Cowsert, 20 Ala 186; Andress v Broughton, 21 Ala 200; Sammis v Johnson, 22 Ala 690; Harris v Row- lands, 23 Ala 644; Furlow v Merrell, 23 Ala 705; Nash v Shrader, 27 Ala 377; Gillespie v Burleson, 28 Ala 552; Smith v Garrett, 31 Ala 492; Lewis v Paull, 42 Ala 136; Thomasson v Groc e 42 Ala 431 Colorad O Martin v Force, 3 Colo199 Illinoi S Rogers v Hall, 4 111 5; McKee v Ingalls, 5 111 30; Michigan City First Nat Bank v Haskell, 23 111 App 616; Chicago City RCo v Duffin, 24 111 App 28; Monroe v Snow, 33 111 App 230 Ohio Hollister v Reznor, 9 Ohio St I But it must be so construed as to have a reasonable meaning, Smith v Garrett, 31 Ala 493; and avoid in- consistencies, Goodgame v Clifton, 13 Ala 583; and words will be given their natural import and meaning, Thompson v Drake, 32 Ala 99 In Virginia, however, early cases hold that where a bill of exceptions to an instruction given by the trial judge to the jury is so vague and confused that the appellate court cannot under- stand the precise state of the case nor the effect of the instructions, judg- ment will be reversed, the verdict set aside, and the cause remanded for new tria L Bowyer v Chesnut, 4 Leigh ( Va) i ; Raines v Philips, I Leigh ( Va) 483; Thompson v Gumming, 2 Leigh ( Va) 321 Printed Recor d In Wisconsin it is held that where the bill of exceptions contradicts the printed record and is confused and unintelligible, the points attempted to be raised will not be re- verse d Green v Stacy (Wi S, 1895), 62 N W Rep 627 In Criminal Case Indiana In a criminal case, however, it was held in Indiana that where the bill of excep- tions embodied two contradictory statements favorable to the prisoner it would be adopte d Willey v State, 52 Ind 251 2 Florida Livingston v Cooper, 22 Fla 292; Myrick v Merritt, 22 Fla 335; Blige v State, 20 Fla 742; Bailey v Clark, 6 Fla 516; Burk v Clark, 8 Fla 9; Tompkins v Eason, 8 Fla 14 b WHERE BILL OMITTE d Where the bill is omitted entirely the appeal will not generally be dismissed unless statutes so pro- vid e 1 The appellate court has jurisdiction to search the record proper for errors alleged therein, and reverse therefor where prej- udicia L 2 Errors not shown therein cannot be considere d 3 Texa S Davis -v State, 14 Tex App 645; Walker v State, 9 Tex App 200 Specific Points State d So on appeal a party is confined to the point or points excepted to, as shown by the bill ; and even although all the evi- dence introduced on the trial is brought up, the court cannot consider matters not specifically stated as a ground of exceptio N Florida Gray v Belden, 3 Fla 114 New Jerse Y Apgar v Hiler, 24 N J L 816 New York Whiteside v Jackson, I Wen d ( N Y) 421; Frier v Jackson, 8 John S ( N Y) 495; Jackson v Cad- well, i Co W ( N Y) 622; Kelly v Kelly, 3 Barb ( N Y) 419; Hunter v Sandy Hill, 6 Hill ( N Y) 407 1 Dawes v Glasgow, i Pi N (Wi S) 171; Doty v Strong, I Pi N (Wi S) 313; Rolette v Crawford County, i Pi N (Wi S) 384; Hays v Kendall, 5 Wi S 132; Cavenaugh v Titus, 5 Wi S 143; Riker v Scofield, 6 Wi S 367; Mer- vins v O'Day, 9 Wi S 156; Davidson v Davidso N 10 Wi S 86; Conger v Chamberlain, n Wi S 187; Noesen v Port Washington, 37 Wi S 168; Mc- Ginnis v Pomeroy, 47 Wi S 137; Mat- ter v Hutchinson, 25 Wi S 27; Kelley v Chicago, etc, RCo, 53 Wi S 74; McEntee v State, 24 Wi S 43 In Nevada an appeal taken without any statement or bill of exceptions will be dismisse d State v Lamb, 20 Nev 181; State v Fellows, 8 Nev 311 In Pennsylvania it is held that an appeal in an action of trespass will be quashed where the record shows that no bill of exceptions was filed, and the charge, though printed in the proper book, was neither filed by the judge, nor approved by him and filed of record by his ordeRHill v Egan, 160 Pa St 119 In a Criminal Case where there is no bill of exceptions taken the appellate court can review nothing but the rec- ord proper, the indictment and the subsequent pleading including verdict and judgment.

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Green, 33 Ohio St 444 Post Date: Tue, 29 Jul 2008 3:10:16 +0000
State v Pints, 64 Mo 317- 2 St Louis v Milligan, 18 Mo 181; Rankin v Holloway, 3 Smed M (Mis S) 614 Where Confined to Bil L Where a court is required to try a cause on a bill of exceptions, it cannot look to other parts of the transcript for sup- posed errors not disclosed in the bill itself Bartee v James, 33 Ala 34 3 State -v Wilson, 5 Nev 43; Rue v Ketchum, 51 Wi S 324; Territory v Doty, i Pi N (Wi S) 396; Osborn v Jaines, 17 Wi S 573; Shipman v State, 44 Wi S 458; Hinckley v Beckwith, 23 Wi S 328; Newcomb v Trempealeau, 24 Wi S 459; Thurber v Jones, 14 W 7 i S 16; Krause v Krause, 23 Wi S 354; Reid v Case, 14 Wi S 429; Barber v Walker, 26 Wi S 44; Imhoff z/ Chicago, etc, RCo, 22 Wi S 681; Cutler v Hurlbut, 29 Wi S 152; Kneifle v State, 13 Wi S 369; Zeidler v Johnson, 38 Wi S 335; Dougherty v North Wis- consin RCo, 36 Wi S 402; Geekie v Wells, 37 Wi S 362 ; Cairns v O'Bleness, 40 Wi S 469 Judgment Rol L So, on appeal from a judgment without a statement of facts or bill of exceptions, only the judg- ment roll is brought up, and no ques- tion arising outside of it can be con- sidere d Wetherbee v Carroll, 33Cal55 I Judgment Affirme d And conversely, where no error is contained in the record proper and there is no bill of exceptions, judgment will be af- firme d California Bacon v Robson, 35 Ca L 399 Illinoi S Winona Paper Co v W O Taylor Co, 27 111 App 558 Pennsylvania Lehigh Valley F In S Co v Tighe, 2 Penny (Pa) 505 Texa S McDowell v Fowler, 80 Tex 587; Texas, etc, RCo v Mc- Allister, 59 Tex 362; Auding v Perkins, 29 Tex 353; Henderson v Trimble, 8 Tex 174; Cannon v Tomp- kins, 22 Tex 35; Johnson v Blount, 48 Tex 38; Bond v Mallow, 17 Tex 636; Crook v M'Greal, 3 Tex 491; Moore v Hardison, 10 Tex 467; Texas, etc, RCo v Evans, 2 Tex Un Rep Ca S (Tex) 319; Hall v Little, C OMISSIONS IX THE BIL L Where any facts essential to show error are omitted from the bill of exceptions the court will refuse to review the point excepted to, as the presumption is that the action of the trial court is corre Ct 1 See article APPEALS, Pre- sumptions on Appeal, Vo L I I, p 420 ii Tex 411; Dewees v Hudgeons, i Tex 192; Edrington v League, i Tex 64; Jones v Black, i Tex 527; Duffield v Bodine, 2 Tex 292; Borden v Houston, 2 Tex 594; Kirkman v Snively, 2 Tex 447; Green v Franklin, i Tex 497; Secrest v Townsend, i Tex 414; McMullen v Kelso, 4 Tex 235 United State S New Orleans Bank v Caldwell, 154 U S 592; Glenn v Fant, 134 U S 398 On Bill Alon e A review cannot be had on a bill of exceptions alone, as there is nothing to show that a judg- ment has been rendered and entered belo W Chamberlin v Morey, 19 Wen d ( N Y) 350 1 Arkansa S Everett v Clements, 9 Ark 480; Bankhead v Hubbard, 14 Ark 298; Mitchell v Byrd, 7 Ark 408; Henry v Gibson, 26 Ark 519; Seifrath v State, 35 Ark 412; Thomas v Hinkle, 35 Ark 450 California Hinkle v San Fran- cisco, etc, RCo, 55Cal627; People v Whitney, 53Cal421 Colorad O Dusing v Nelson, 7 Colo184; Behymer -v Nordloh, 12 Colo352 Illinoi S Smith v Gilman, 38 111 App 397; Yaeger v Henry, 39 111 App 22; Rohrheimer v Eagle, 30 111 App 498; Treishel v McGill, 28 111 App 68; Ryan v Sanford, 133 111 298; Goodwillie v Lake View, 137 111 67; Redner v Davern, 41 111 App 247; Brown v Lehigh, etc, Coal Co, 40 111 App 603; Schmidt v Bauer, 33 111 App 93; Chicago, etc, RCo v Lane, 130 111 122; McCarty v Chicago, etc, RCo, 34 111 App 273; McFarland v Claypool, 30 111 App 39; Hosmer U Drainage DiSt, 135 111 55 Indiana Vanderkarr v State, 51 Ind 91; Schlungger v State, 113 Ind 297 KentucKy Co M v Runnion,3 Mete (Ky)3; Reed v Co M,7 Bush (Ky) 642; McDaniel v Co M, 6 Bush (Ky) 326; Mickey v Co M, 9 Bush (Ky) Louisiana Scott v Lawson, 10 La An N 547; State v Judge, 40 La An N 809 Massachusett S Boston Loan Co v Myers, 143 Mas S 446; Khron v Brock, 144 Mas S 516; Haverhill Loan, etc, Asso C v Cronin, 4 Allen (Mas S) 141; Mclntyre v Park, 11 Gray (Mas S) 102; Gunnison v Langley, 3 Allen (Mas S) 337; Hackett v King, 8 Allen (Mas S) 144; Co M v O'Brien, 119 Mas S 342; Hobartz'. Plymouth County, 100 Mas S 159; Kershaw v Wright, 115 Mas S 361; Britton v Worcester Count Y 123 Mas S 309 Mississipp I Rankin v Butler, 2 Smed M (Mis S) 473; Neal v Saun- derson, 2 Smed M (Mis S) 572; Hamilton v State, 35 Mis S 214; Dal- rymple v Buckingham, 23 Mis S 597; Hines v North Carolina, 10 Smed M (Mis S) 530; Townsend v Blewett, 5 How (Mis S) 503; Harris v New- man, 5 How (Mis S) 654 Missour I Ray v Brown, 80 Mo 230; Kennedy v Merry, n Mo 214; Roesler v Citizens' Bank, 88 Mo 565; Dinwiddie v Jacobs, 82 Mo 195; Greene County v Wilhite, 35 Mo App 39; Frazer v Yeatman, 10 Mo 501 Ohio Beanz'.Green, 33 Ohio St 444 Tennessee Matthews v Weeden, 4 Yerg (Tenn) 167; Union Bank v Lowe, Meigs (Tenn) 229; Melton v State, 3 Humph (Tenn) 394; Martin v Tennessee Bank, 2 Cold W (Tenn) 334; Sible v State, 3 Heis K (Tenn) 140; Crawford v Bynum, 7 Yerg (Tenn) 383; Harris v State, 3 Heis K (Tenn) 140 N ; Wickham v State, 7 Cold W (Tenn) 525; Wilkins v Gil- more, 2 Humph (Tenn) 140; Sweat S Rogers, 6 Heis K (Tenn) 119; Holbert v Seawright, 3 Baxt (Tenn) 170; Nolen v Wilson, 5 Sneed (Tenn) 334; Trott v West, Meigs (Tenn) 169; Davis v Jones, 3 Head (Tenn) 605; Pullen v Lane, 4 Cold W (Tenn) 250; Whiteside v Button, 2 Cold W (Tenn) 95; Woods v State, 7 Cold W (Tenn) 336; Heatherly v Bridges, I Heis K (Tenn) 220; Turnley v Evans, 3 Humph (Tenn) 222; Chambers v Brown, Cooke (Tenn) 293; Nichols v State Bank, 3 Yerg (Tenn) in; Mul- holland v Ellitson, I Cold W (Tenn) 313; Nave v Nave, i Heis K (Tenn) Ver Mont Poultney v Glover, 23 Vt 328; Bradley v Pratt, 23 Vt 378; Oaks 3 Verity of the Bill A GENERALL Y A bill of exceptions, being made up by the judge under the solemn sanction of his signa- ture and seal, and with the aid of the attorneys of the respective parties, and, when properly authenticated, becoming a record, imports absolute verity, and the truth of its statements can never be doubte d 1 Its recitals cannot, therefore, be impeached by v Oaks, 27 Vt 410; Beard v Murphy, 37 Vt 99; Westford v Essex, 31 Vt 459; Isham v Eggleston, 2 Vt 270; Green v Donaldson, i6 Vt 162; Gates v Bowker, 18 Vt 23; Spaulding v Warner, 57 Vt 654: State v Nulty, 57 Vt 543; Partch v Spooner, 57 Vt 583; Brownell v Troy, etc, RCo, -55 Vt 218; Burton v Barlow, 55 Vt 434; Lillie v Lillie, 55 Vt 470; Eames v Brattleboro, 54 Vt 471; Melendy v Spaulding, 54 Vt 517; Rogers v Swan- ton, 54 Vt 585; Weeks v Lyndon, 54 Vt 638; Gibson v Vail, 53 Vt 476; Stone v Tupper, 58 Vt 409; Boutelle v Westchester F In S Co, 51 Vt 4 VirginiaCallaghan -v Kippers, 7 Leigh ( Va)6o8 West VirginiaLively v Ballard, 2 W Va 496; Shepherd v McQuilken, 2 W Va 90; Wise v Postlewait, 3 W Va 452; Kuykendall v Ruckman, 2 W Va 332; Dawson v Prichard, 5 W Va 18; Hooff v Rollins, 5 W Va 540; Carlton v Moys, 8 W Va 245; Patton v Elk River Nav Co, 13 W Va 261 ; Nease v Capehart, 15 W Va 200; Taylor v Boughner, 16 W Va 327; Ramsburg v Erb, 16 W Va 777; Todd -v Gates, 20 W Va 464; Faw- cett v Pittsburg, etc, RCo, 24 W Va 755 Wisconsi N Davis, etc, Bld g,etc, Co v Cupp (Wi S, 1895), 6? N W Rep 520; Cunningham v Gallagher, 61 Wi S 170 Where Bill Incomplet e Where on appeal from probate a bill of excep- tions does not set out the evidence, but states merely that certain papers and records by name were introduced, the court will presume in favor of the correctness of the decision of the court below, and the judgment will be affirme d Barwick v Rackley, 45 Ala 215; Rushton v Martin, 43 Ala Assumption of Fact S And where a fact is assumed as proved in a charge it will be presumed on appeal that the evidence justified the assumption, un- less it is shown by the bill of excep- tions that the evidence was conflicting or left the fact in doubt.

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Miller v Clark, 56 Mich Post Date: Tue, 29 Jul 2008 2:57:49 +0000
Kirkland v Gates, 25 Ala 465 Instruction S So where instructions are omitted altogether, they will be presumed corre Ct Gausman v Schmittenberg (Ky, 1889), n S W Rep 594 What not Presume d But in the ab- sence of a bill of exceptions it will not be presumed, to support a judgment, that material facts not alleged in the complaint were prove N Lauer v Bandow,43 Wi S 556 See Presumptions on Appeal, Vo L I I, p 420 In Smith v Co M, i Duv (Ky) 224, a criminal case, it was said that un- less the record authorized in some way the inference that it did not con- tain all the instructions, the judicial construction should be that it di d But this is not the remed Y See Pre- sumptions on Appeal, Vo L I I, p 420 1 Arkansa S McDonald v Faulk- ner, 2 Ark 472; Governor v Evans, i Ark 360 Florida -^ Bailey v Clark, 6 Fla 516; Sams v King, 18 Fla 552 Indiana Longworth v Higham, 89 Ind 352; Vermillion v Nelson, 87 Ind 194; Thames, etc, Co v Beville, 100 Ind 309; Walls v Anderson, etc, RCo, 60 Ind 56; Beavers v State, 58 Ind 530; Blizzard v Blizzard, 48 Ind 540; Ryan v Burkham, 42 Ind 507; Jelley v Roberts, 50 Ind i; Seymour Woollen Factory Co v Brodhecker, 130 Ind 389; Bartel v Tieman, 55 Ind 438; Meredith S Lackey, 14 Ind 529 Marylan d Mitchell v Mitchell, I Gill (Md)66 Wisconsi N Murphy v Martin, 58 Wi S 277 Judge's Certificat e So where the bill of exceptions has become part of the record by signing and filing, it cannot be altered by a judge's certificat e Dedric v Hodson, 62 Iowa 566 The certificate of the justice of the peace to a bill of exceptions cannot be altered or impeached by a subsequent certificate of the same justic e Fuller v Champaign Twine, etc, Co, 39 Ka N 492 affidavits, 1 nor by any evidence outside the record itself 2 b CONFLICT IN RECOR d Where Record Control S Where the recitals of the bill conflict with the recitals of the record as to matters properly certified up by the clerk in the record, the state- ments of the record contro L 3 Instances of Constructio N If the bill states that a party was absent at the time his pleading was filed he will be held to be absent, although his plead- ing has his name to it, as if he had filed it in perso N Meredith S Lackey, 14 Ind 529 So where a bill of exceptions states that the court permitted evidence to be given, it cannot be shown, on ap- peal, that it was subsequently with- drawn, unless the bill so state S Brindle v Mcllvaine, 9 S R(Pa) 74 Or where a trial judge certifies that a motion, accompanied by affida- vits, was made at a previous term, though the record of the proceedings in the case of that term contains no evidence of the fact, nevertheless the appellate court is bound to receive and recognize the statements in the bill as conclusive, and treat them as part of the recor d Kane v Burrus, 2 Smed M (Mis S) 313 So where the bill of exceptions, in the recitals, states that the exceptions were taken at the time when made and before jury retired, it cannot be contradicted by the statement of the clerk in the record that they were taken subsequently, Helm v Smith, 2 Smed M (Mis S) 403 If the verity of the clerk's return is to be contested a continuance of the appeal should be obtained, for the purpose of questioning the accuracy in the trial court. Eldred v Malloy, 2 Colo20 Separate Bill S Where separate bills are taken out by the appellant and appellee which are each signed by the trial judge at the same time, such bills are treated as of equal verity; and where they conflict as to the same point, the appellate court may refuse to consider it. Miller v Clark, 56 Mich 337 Compare Briggs v Georgia, 12 Vt 64 Each bill of exceptions must be con- sidered as presenting a distinct and substantial case, and the court can consider only the evidence properly included therei N Southwestern Va Im P Co Z- Frari, 58 Fed Rep 171; Jones v Buckell, 104 U S 554 1 Indiana Beavers v State, 58 Ind 530 Missour I State v De Mosse, 98 Mo 340; State v Greenwade, 72 Mo 298 Tennessee Kennedy v Kennedy, 16 Lea (Tenn) 736 Texa S Live Oak County v Hea- ton, 39 Tex 499 Improper Allowanc e Affidavits will not be received in the appellate court to show that the bill of exceptions was improperly allowed and signed by the trial judg e East Line, etc, RCo v Culberson, 72 Tex 375 The Proper Remedy is a motion before the trial judge to amend the records of the trial court by striking out the bill of exceptions; it may be made after the perfection of an appeal and adjournment for the ter M East Line, etc, RCo v Culberson, 72 Tex 375; and a certiorari to the court be- low to bring up the amended bill, Hollingsworth v Chapman, 50 Ala 24 See AMENDMENT S To Authenticate Recor d Conversely, affidavits will not suffice to authenti- cate the recitals in a bill of exceptions which are qualified or disputed by the trial judge in his note of explanation theret O Resort must be had to a bill of exceptions authenticated by by- standers, if the statute so allowe d Lindley v State, n Tex App 283 2 Earl of Glasgow v Hurbet Alum Co, 3 H L Ca S 25; Bain v White- haven, etc, RCo, 3 H L Ca S i; Heddleston v Hendricks, 49 Ohio St 297; Pearce v Clements, 73 Ala 257; Ex p Nelson, 62 Ala 380; Decatur Branch Bank v Kinsey, 5 Ala 9; Chapman v Holding, 54 Ala 61; Hunter v Heath, 76 Me 221; Har- wood v Siphers, 70 Me 464; Allen v Lawrence, 64 Me 175; Brewer v East Machias, 27 Me 489; Webster v Fol- som, 58 Me 230; Maxwell v Mitchell, 61 Me 106; Holbrook v Knight, 67 Me 244; Gilman v European, etc, RCo, 60 Me 235 The appellate court has no power to look beyond a properly authenticated bill of exceptions to ascertain what happened in the trial of the case be- lo W Byrne v Clark, 31 111 App 651 3 Alabama Danforth v Tennes- see, etc, RCo, 93 Ala 615; Courie v Goodwin, 89 Ala 571 Where Bill Control S Where the conflict is as to matters properly included in the bill of exceptions, the recitals of the bill prevail over the recitals of the recor d 1 statements of Fact S The recitals of the bill prevail over conflict- ing statements in the statement of fact S* Arkansa S Governor v Evans, I Ark 352; Greenwood -v State, 17 Ark 332; Trammell v Bassett, 24 Ark 499; Crump v Starke, 23 Ark 131 Colorad O Kirkpatrick v Wheeler, 8 Colo414 Iowa In re Pyle's Estate, 82 Iowa 146; Cook v U S, I Greene (Iowa) 56 Missour I State i.

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S v Hodge, 6 Post Date: Tue, 29 Jul 2008 2:47:03 +0000
Sanger, 28 Mo 3I4- New York Tuttle v Jackson, 6 Wen d ( N Y) 213 Where a bill of exceptions shows a refusal of the judge to permit it to be filed, in contradiction to an entry show- ing that the court permitted it to be filed and to form part of the record, the record statement prevail S Hixon v Weaver, 9 Ark 135 Presumption as to Verdi Ct Where the bill of exceptions shows an informal verdict, but the record proper a ver- dict correct in form, it will be pre- sumed that the verdict as first re- turned was corrected by order of court, and the record entry will pre- vai L Allmon v Chicago, etc, RCo Il L,i895), 39 N E Rep 569 But in Mississippi it was held that where a bill of exceptions taken by plaintiff, to an order of the court setting aside the service of the writ after pleas filed, and rendering a final judgment for the defendant, recites that the order excepted to was made on the motion of the plaintiff, while the judgment of the court itself states that it was made on motion of the defendant, the high court of errors and appeals will adopt the construction that the order was made on the motion of the defendant as the most sensible and consistent with the whole recor d Wooten v Wingate, 6 Smed M (Mis S) 271 Facts Omitte d The omission of facts which should have appeared of record cannot be remedied by a bill of excep- tions afterwards filed in the cas e Bowen v State, 108 Ind 411 1 Alabama Petty v Dill, 53 Ala 644; Landreth v Landreth, 9 Ala 430; Vincent v Rogers, 30 Ala 471; David- son v Street, 34 Ala 125 Arkansa S Touchstone v Harris, 22 Ark 365 Indiana State v Flemons, 6 Ind 279; Carmichael z/ Shiel, 21 Ind 66; Cincinnati, etc, RCo v McFarland, 22 Ind 459; Alley S State, 76 Ind 94; Indiana, etc, RCo v Adams, 112 Ind 302; Doe v Smith, i Ind 451 Mississipp I Carprew v Canavan, 4 How (Mis S) 370; Helm v Smith, 2 Smed M (Mis S) 403; Rhodes v Sherrod, 8 Smed M (Mis S) 97 Missour I Fulkerson v State, 14 Mo 49 Texa S Smith v State, 4 Tex App 626 Clerk's Memoranda Unavailin g It fol- lows, from the principle that matters properly in the bill cannot be regarded if found elsewhere, that memoranda of the clerk as to testimony and exceptions form no substitute for a bil L Robinson v L'Engle, 13 Fla 482 Florida Gray v Belden, 3 Fla no; Proctor v Hart, 5 Fla 465; Bailey v Clark, 6 Fla 516; Dibble v Truluck, II Fla 135 Indiana Wiler v Manley, 51 Ind 169 Iowa Shepherd v Brenton, 15 Iowa 84 Contradiction with Findin g So a re- cital of a waiver of a jury trial in the findings cannot prevail against a show- ing in the bill of exceptions that a jury trial was demanded and denie d Downing v Le Du, 82Cal471 2 Ezzell v State, 29 Tex App 521; Gaines v Salmon, 16 Tex 311; Smith -v State, 4 Tex App 626; Har- ris -v State, i Tex App 74; McClel- land v Fallon, 74 Tex 236 But in the same state it has been held that where the bill of exceptions and statement of facts disagree as to a recital showing error, so that if the statement is true there is no error, while if the bill is true error has been committed, judgment will be affirme d McMichael v Truehart, 48 Tex 218; Ramsey v Hurley, 72 Tex 194 Com- pare Gaines v Salmon, 16 Tex 311 See article STATEMENT OF FACT S 4 Waiver of Bill by Motion for New Tria L A bill of exceptions contemplates a review of the matters contained therein, only in a higher tribunal of appeal, 1 consequently a party cannot move for a new trial on any point raised by the bill without waiving his bill of exceptions thereo N 2 But a waiver of the entire bill is not necessary ; 3 only those questions in the bill need be waived which are alleged as ground for the motion for new tria L 4 5 Stay of Proceeding S A bill of exceptions does not operate as a stay of proceeding S 5 See article SUPERSEDEAS AND STAY OF PROCEEDING S 1 Alabama West v Cunningham, 9 Port (Ala) 104 Georgia McLendon v Smith, 68 Ga 38; Nacoochee Hydraulic Mi N Co v Davis, 40 Ga 309; Holcombe v, Roberts, 19 Ga 588; Irwtn v Jackson, 34 Ga 101 Marylan d Lee v Tinges, 7 Md 226: Mitchell v Mitchell, n Gill J (Md) 3 8 9 . Massachusett S See Co M v Dow, 5 Met (Mas S) 331; Cogswell v Brown, i Mas S 237 Mississipp I Bowers v Ross, 55 Mis S 220 New Jerse Y Mann v Glover, 14 N J L 198 New York Hasbrouck v Tappen, 15 John S ( N Y) 182; Jackson v Varick, 7 Co W ( N Y) 412; Seymour v Sloann, 18 Wen d ( N Y) 589 Englan d Doe v Roberts, 2 Chitty Rep 272, 18 E C L 333; Allen v Hayward, 7 QB 960, 53 E C L 960; Adams z/ Andrews, 15 QB 1001, 69 E C L 1001 2 New Jerse Y Mann v Glover, 14 N J L 198; Meeker v Boylan, 27 N J L 263; Fabrigan v Mostyn, 2 W B L 929; Corlies v Cummings, 5 Co W ( N Y)4i5 United State S \3 . S v Hodge, 6 Ho W (U S) 279 But see Reed v Miller, i Bibb (Ky) 142, where it was held that the court has no right to require the with- drawal of the bill before it will enter- tain a motion for a new trial present- ing the same question S Necessity of Motio N In other states the opposite rule obtains that a sub- sequent motion by the appellant for a new trial, and failure to insert his exceptions therein, is a waiver of his right to a review of such exceptions on appea L Bixby v State, 15 Ark 395; Ferguson v Ehrenberg, 39 Ark 420 In Massachusetts it was held that the court will grant a new trial without requiring the right of review to be waived, where the court held on the trial that, from the facts shown by the plaintiff, the law was such that he could not recover, and stopped the ex- amination of witnesses for the defend- ant on that ground; but the jury found a verdict for plaintiff, against the direction of the judg e Dunham v Baxter, 4 Mas S 79 Eule in Mississipp I A motion for new trial is not a waiver of special bills of exception taken during the trial of a case, and while the Supreme Court cannot consider exceptions to the action of the court below on a motion for a third new trial, it will consider special bills of exceptions to- the evidence, and to the instructions given in the progress of the triaL Bowers v Ross, 55 Mis S 213 3 Mann v Glover, 14 N J L 198 4 Mann v Glover, 14 N J L 198; Meeker v Boylan, 27 N J L 263 5 The procurement of a bill of ex- ceptions does not, accordingly, sus- pend the appellee's right to give notice of the entry of judgment, which sets the time to settle the bil L Sexton v Pickett, 24 Wi S 348 An order staying the proceedings until security for costs had been given by the exceptant does not oper- ate to stay the sealing of the bill of exception S Hill v Fox, 3 H N Although a bill of exceptions may act as a statutory stay of proceedings, nevertheless it does not prevent a rule nisi for judgment.

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2 I I AT LAW Post Date: Tue, 29 Jul 2008 2:29:25 +0000
Moran v Dawes, 4 Co W ( N Y) 22 Entry of Appea L The mere filing of a bill of exceptions does not constitute the entry of an appea L State v*. Mackall, n Gill J (Md) 456 I DEFINITION AND ORIGI N A bill of particulars is an ampli- fication or more particular specification of the matter set forth in the pleadin g 1 It was unknown to the ancient common law, and arose out of the use of common-law counts in actions of debt and assumpsit. 2 I I AT LAW AND IN EQUIT Y Bills of particulars are used in ac- tions at law, both under the old forms of actions and under the modern code procedure, 3 but they have no place in equitable proceeding S 4 1 Starkweather v Kittle, 17 Wend, courts of law in requiring the plaintiff ( N Y) 20; Brown Law Diet 67 to furnish a particular of his demand 2 Dempster v Purnell, 3 M g upon a general declaratio N But upon 375 3 Chitty Ge N Pra C 612 further examination and reflection, I 3 See v When Granted, infra, am satisfied such a course is not neces- and XII I Specific Actions, infr A sary for the attainment, of justice, and 4 In a suit against a surviving that the adoption of such a practice partner and the representative of a would in many cases lead to great deceased partner to recover both the and unnecessary delay and expense, amount of notes due by a partnership The forms of pleading in this court and the balance of an account, the suit are such as to furnish to the defend- being brought in equity on account of ant, in most cases, all the information the surviving partner's insolvency, a as to the particular nature of the claim bill of particulars was asked for; but made against him which can be neces- Walworth, chancellor, said: " I have sary to enable him to meet it by an not been able to find any case in which appropriate defens e And if, as in the Court of Chancery has made an this case, the complainant seeks to order for a specification of the com- recover a bcok account against the plainant's demand in the nature of a defendant, upon a general allegation bill of particulars at la W Upon the in the bill of indebtedness, and with- first view of this question I was in- out a specification of the items, the 'clined to think this was a case in court at the hearing will not under- which the defendants were entitled to take to settle the account.

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* * * In my Post Date: Tue, 29 Jul 2008 2:11:09 +0000
It will in a specification of the date, amount, that case be referred to a master, with and particular nature of each item of liberty to the defendant to introduce the account claimed against them new testimony, or to make any legal under the general charges in the bill, or equitable defense which he may on the same principle which governs have to each and every item thereof" II I PTTBPOSE AND EFFECT 1 To Amplifyfhe Pleadin g A bill of particulars does not set forth the cause of action or the ground of defense ; * these constitute the function of the original plead- in g 2 The chief office of a bill of particulars is to amplify a plead- ing and more minutely specify the claim or defense set u P 3 2 To Prevent Surprise and Restrict Proof Another object of a bill of particulars is to prevent surprise on the trial, 4 by furnish- Cornell v Bostwick, 3 Paige ( N Y) 1 60 1 Seaman v Low, 4 Bosw ( N Y) 337; Higenbotam v Green, 25 Hun ( N Y) 214; Bennett v Wardell, 43 Hun ( N Y) 452; Hazard v Birdsall, 61 Hun ( N Y) 208, and cases cited in the following not e Contested Item S After a bill of par- ticulars has been served, the party will not be required to specify what items he intends to conteSt Prince v Walton, 2 N Y Month L Bul L 38 Not to Anticipate Defens e The bill of particulars should not anticipate or furnish matters of defense, either affirmative or special, Fullerton v Gaylord, 7 Robt ( N Y) 551; John S Way Mfg Co v Corn, 66 How Pr ( N Y Supreme Ct) 152, 5 N Y Month L Bul L 81; Dwight v Ger- mania L In S Co, 84 N Y 493; such as payments, or matters of set-off, when they constitute a claim inde- pendent of an account between the parties, Olcott v Hanson, 12 Mich 452; Ryckman v Haight, 15 John S ( N Y) 222; Giles v Betz, 15 Abb Pr ( N Y) 285; Williams v Shaw, 4 Abb Pr ( N Y Supreme Ct) 209 Distinction between Claim and Ac- count. For a distinction between a claim and an account, with a criticism on the case of Williams v Shaw, 4 Abb Pr ( N Y Supreme Ct) 409, see Candee v Doying, 5 Civ Pro Rep ( N Y C P I) 92, 66 How Pr ( N Y) 452, where Beach, J, said: " Bills of particulars are of two kinds: One ap- pertains to an account between par- ties, the other to a claim by one part Y The rules governing the right to the one or the other are different. * * * In my opinion an account should contain credits (if any) as well as debit S One class of items is no more a part of the account than the otheRThe rule is different where the bill of particulars of a claim is ordered by the court.

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2 to compel its adversary Post Date: Tue, 29 Jul 2008 1:53:30 +0000
" In referring to the case of Williams v Shaw, 4 Abb Pr ( N Y Supreme Ct) 209, he further said: " From the brief memorandum it seems to me the learned judge did not appreciate the difference between a bill of particu- lars of an account and one of a clai M" 2 Although a specification, when it describes a cause of action consistent with the declaration and one that can be proven under it, becomes and is to be treated as part of the declaration, yet a specification cannot enlarge, alter, or amend a declaratio N Moses v Taylor, 6 Mackey ( d C) 255; Clem- ent v Brown, 30 111 43; Cicotte v Wayne County, 44 Mich 173; Picker- ing v De Rochemont, 45 N H 67; Seaman v Low, 4 Bosw ( N Y) 337; New York v National Broadway Bank, 14 N Y Wkl Y Di g 492; Spen- cer v Tarns, i T H Pr (Pa) 425 A bill of particulars in an action for wages cannot include a claim for money returned to the defendant as a loan after it had been received in payment of wage S Judd v Burton, 51 Mich 74 A bill of particulars reading "To cash lent and money had and re- ceived," will not entitle the plaintiff to recover for money paid under du- res S McVane z/ Williams, 50 Con N 548 3 Landon v Sage, n Con N 302; Dean v Savage, 28 Con N 362; Blount v Rick, 107 Ind 238; Davis v Free- man, 10 Mich 188; Wright v Dickin- son, 67 Mich 580, ii A M St Rep 602; Carter v Tuck, 3 Gill (Md)248; Mat- thews v Hubbard,47 N Y 428; Mel- vin v Wood, 4 Abb Pr, N S ( N Y Ct of App) 438; Butler v Mann, 3 Abb N Ca S ( N Y Supreme Ct)4g; People v Nolan, 10 Abb N Ca S ( N Y Supreme Ct) 471; Seaman v Low, 4 Bosw ( N Y) 337; Bowman v Earle, 3Duer ( N Y)6gi; Gee v Chase Mfg Co, 12 Hun ( N Y) 630; Higenbotam v Green, 25 Hun ( N Y) 214; Drake v Thayer, 5 Robt ( N Y) 694; People z/ Monroe C p, 4 Wen d ( N Y)2oo; Garfield v Paris, 96 U S 557 4 Drake v Thayer, 5 Robt ( N Y) ing that information which a reasonable man would require respecting the matters against which he is called upon to defend himself ; * and by thus limiting the generality of the pleading its effect is to confine the proof to the particulars specified therei N* 3 Not to Disclose the Evidenc e It is well settled, however, that it is not the purpose or office of a bill of particulars to disclose the specific evidence upon which a party relies for recover Y 3 Iv How OBTAINED 1 Statutory Demand or Notic e Statutes sometimes provide that a party shall be entitled, under certain circumstances, to a bill of particulars of his adversary's claim, upon simple demand therefoR4 But a stipulation to furnish such a bill, 5 or the actual delivery thereof, 6 dispenses with the necessity of a deman d 2 By Motio N A REQUISITES OF MOTIO N The bill is, how- ever, usually obtained by a motion to the court before which the action is pendin g 7 The motion papers should specify what in- 694; Dyett v Seymour (Supreme Ct), Y) n; Newell v Butler, 38 Hun ( N Y) 104; Fink v Jetter, 38 Hun ( N Y) 8 N Y St Rep 429; Wooster z/ Bate- man, 4 Mis C Rep ( N Y SupeRCt) 43i, 53 N Y St Rep 562; Green- wood v Smith, 45 Vt 37 1 Walker v Fuller, 29 Ark 448; Cicotte v Wayne County, 44 Mich 173; Rennie v Beresford, 15 M W 78; People v Nolan, 10 Abb N Ca S ( N Y Supreme Ct) 471; Divs- sey v Rust, 46 N Y SupeRCt 374; Barremore v Taylor, 52 N Y SupeRCt 448; D wight v Germania L In S Co, 84 N Y 4931 Witkowski v Paramore, 93 N Y 467 Pleading Explicit. It has no appli- cation when the demand is specifically set forth in the pleadin g People v Monroe C p, 4 Wen d ( N Y) 200 2 Dempster v Purnell, 3 M g 375 See XI I Evidence, infr A 3 Dooley v Royal Baking Powder Co,i N Y Month L Bul L 18; Bern- hard v Dyar, 3 N Y Month L Bul L 92; Melvin v Wood, 4 Abb Pr, N S ( N Y Ct of App) 438; Butler v Mann, 9 Abb N Ca S ( N Y Su- preme Ct) 49; American Multiple Fabric Co v Eureka Fire Hose Co, 18 Abb N Ca S ( N Y Supreme Ct) 70; Seaman v Low, 4 Bosw ( N Y) 337; Stevens v Webb, 4 Civ Pro Rep ( N Y C P I) 64; Bowman v Earle, 3 Duer ( N Y) 691; Brittingham v Stevens, i Hall ( N Y) 380; Bangs v Ocean Nat Bank, 53 How Pr ( N Y C P I) 151; Gee v Chase Mfg Co, 12 Hun ( N Y) 630; Higenbotam v Green, 25 Hun ( N Y) 214; Lane v Williams, 37 Hun ( N Y) 388; Ball v Evening Post Pu b Co, 38 Hun ( N 163; Passavant z/ Cantor, 48 Hun ( N Y) 546, i N Y Supp 574; Hazard v Birdsall,6i Hun( N Y)2o8; Jewelers' Mercantile Agency v Jewelers' Week- ly Pu b Co, 66 Hun ( N Y) 58, 49 N Y St Rep 502; Halstead v Halstead, 2 Mis C Rep ( N Y) 501; Home Maker Co v Alley, 2 Mis C Rep ( N Y C P I) in, 49 N Y St Rep 347; Richmond v Woolfolk, 2 Mis C Rep ( N Y Su- peRCt) 570, 22 N Y Supp 49; Foley v Jennings, 9 Mis C Rep ( N Y C P I) 105; Drake v Thayer, 5 Robt ( N Y) 694; Fullerton -v Gaylord, 7 Robt ( N Y) 551; Dempewolfe v Hills, 53 N Y SupeRCt Rep 105, n Civ Pro Rep ( N Y) 14; Kerch v Rome, etc, RCo (Supreme Ct), 14 N Y St Rep 446, 14 Civ Pro Rep ( N Y) 167; Roberts v Cullen ( C PL), 40 N Y St Rep 672; Matthews v Hubbard, 47 N Y 428; Osborne v New York Mut In S Co, 6 N Y St Rep 870, 26 N Y Wkl Y Di g in ; People v Howell (Supreme Ct), 37 N Y St Rep 181; Cheseborough v Kimberly (Supreme Ct), 6 N Y Supp 623; Van Voorst v Morris Canal, etc, Co, 20 N J L 200 4 In New York it is only where the account is set out in the pleading that a demand for a bill of particu- lars is proper without a motio N Clegg v American Newspaper Union, 7 Abb N Ca S ( N Y Supreme Ct) 59 5 Tuttle v Wilson, 42 Min N 233 6 Clinton v Lyon, 3 N J L 755 7 Benedict v Swain, 43 N H 33; Lambert v Perry, 48 Hun ( N Y) 621; Clegg -v American Newspaper formation the applicant desires * and the necessity therefor, and must generally be supported by affidavit. 2 to compel its adversary to disclos e Dueber Watch Case Mfg Co v Key- stone Watch Case Co, 66 Hun ( N Y) 634, 21 N Y Supp 342 By StrangeRAn affidavit on a mo- tion for an additional bill of particu- lars need not be made by the party to the suit, and it is sufficient if it furnishes the proof necessary to cause the order to be mad e Ward v Little- john, 53 Hun ( N Y) 634, 6 N Y Supp 170 Reason S An affidavit by an attor- ney or a stranger must show a suffi- cient reason why it was not made by the moving part Y Cohn v Baldwin (Supreme Ct), 26 N Y Supp 457; Tal- bert v Storum, 66 Hun ( N Y) 635, 21 N Y Supp 719; Hoeninghaus v Chaleyer, 52 Hun ( N Y) 611, 22 N Y St Rep 528; Blake v Harrigan, 19 Civ Pro Rep ( N Y) 207, n N Y Supp 209 Want of Knowledg e The defendant must satisfy the court that he has no knowledge of the case the plain- tiff intends to set up at the trial, and no means of obtaining knowledge without the aid of the court.

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724 Not an Appearanc e Post Date: Tue, 29 Jul 2008 1:43:12 +0000
It is not enough merely that his defense is embarrassed by the want of such knowledg e Brown v Great West- ern RCo, 26 L T, N S 398, 20 W R585- But an affidavit in support of a mo- tion for a bill of particulars is suffi- cient when it fails to state that the defendant " has no knowledge or in- formation sufficient to form a belief or suspicion" as to the particulars asked for, but alleges "that defend- ant is entirely ignorant" of the facts to which the complaint refer S Gar- field Nat Bank v Peck, i Mis C Rep ( N Y C P I) 126, 20 N Y Supp 650 Short Notic e When the plaintiff moves for a bill of particulars of an allegation in the defendant's answer, he cannot compel the defendant to furnish a bill of particulars of another allegation by serving on him one day before the return of the motion an affidavit alleging that he desires such bil L Lambert v Perry, 48 Hun ( N Y) 621, i N Y Supp 152 Remedy for Indefinitenes S The plain- tiff' s remedy for indefiniteness in the defendant's counterclaim is by motion for the defendant to furnish the par- Union, 7 Abb N Ca S ( N Y Supreme Ct) 59; Smith v Johnston, 52 Hun { N Y) 611; McLaughlin v Kelly, 22 Abb N Ca S ( N Y Supreme Ct) 286 1 Specifi C Where, in an action to account between ex-members of a firm, the pleadings show that claims are made the nature or extent of which is not shown by the books of the firm, an application for particulars should be specific and directed to particular transaction S Depew v Leal, 5 Duer ( N Y) 663 Too Broa d A demand for a bill of particulars requiring a statement of ' 'all matters relating to the conspiracy alleged in the complaint " is too broad and general in its character, and is unauthorize d Hubbard v Otis, 17 N Y Wkl Y Di g 348 2 Cohn v Baldwin (Supreme Ct), 26 N Y Supp 457; Gridley v Grid- ley, 7 Civ Pro Rep ( N Y Supreme Ct) 216; McCarron v Sire, 14 Civ Pro Rep ( N Y City Ct) 252 Affidavit of Necessit Y Where the de- fendant moved for a bill of particu- lars showing the names and addresses of certain persons, but filed no affi- davit showing his necessity for the information, the motion was properly denie d Sawyer v Bennett, 63 Hun ( N Y) 631, 18 N' Y Supp 24 See also De Carrillo v Carrillo, 53 Hun ( N Y) 3 59- By Attorney or Stranger By Attor- ne Y The affidavit of an attorney of record that he cannot safely answer without a bill of particulars is suffi- cient proof of the necessity therefor, he being the judge of whether it is required, and there being no statute or rule of practice requiring proof by the affidavit of the part Y Sanders v Soutter, 54 Hun ( N Y) 310, 7 N Y Supp 549, distinguishing Tim v Smith, 93 N Y 87; Willis v Bailey, 19 John S ( N Y)268 A motion for a bill of particulars of the plaintiff's claim, founded on affi- davit, should be denied when made by the defendant's attorney, though defendant is a foreign corporation and all of the officers are without the state and the attorney has charge of the action, since he cannot know that the defendant needs the particulars claimed, or that it has not in its pos- session all the facts which it seeks b WHEN TO BE MAD e A motion or demand for a bill of par- ticulars may, as a general rule, be made at any time after service or filing of the declaration or complaint, and before trial, 1 although this rule has its exception S 2 The motion generally comes too late when made upon the trial, 3 and dilatory applications are in ticulars of the counterclaim, not by a motion to make more certai N Clegg v American Newspaper Union, 7 Abb N Ca S ( N Y Supreme Ct) 59- Motion for Mere Specific Complaint. The want of a bill of particulars with a complaint cannot be reached by mo- tion to make the complaint more spe- cifi C Louisville, etc, RCo v Henly, 88 Ind 535 1 Watkins v Brown, 5 Ark 197; Weller v Weller, 4 Hun ( N Y) 195; Klock v Brennan (Supreme Ct), 35 N Y St Rep 745, 20 Civ Pro Rep ( N Y) 139; Roosevelt v Gardinier, 2 Co W ( N Y)43; Whiteside v Green, 64 N Car 307; Marcus z/ Boling, 5 W N C (Pa) 542; Gibbs v Knight- ly, 2 H N 34; Derry v Lloyd, i Chitt. 724 Not an Appearanc e It is not re- garded as an appearance to the dec- laration, or as confined in its object to the defense on the merit S Wat- kins v Brown, 5 Ark 197 After Taking Depositio N The taking of the deposition by consent is not the beginning of the trial, so as to prevent the defendant from there- after moving for a bill of particular S McLaughlin v Kelly, 22 Abb N Ca S ( N Y Supreme Ct) 286, 6 N Y Supp After Discover Y A request for a bill of particulars can be deferred until after discovery is ha d Young v De Mott, i Barb ( N Y) 30 Delay without Prejudic e Where de- fendant gave notice to the plain- tiff in March to furnish a bill of par- ticulars, the granting of a motion in the following June to compel plaintiff to furnish the bill, the June term be- ing then ended and no delay being caused thereby, was proper under the statute providing that the court may in any case direct a bill of particu- lar S Smith v Johnston, 52 Hun ( N Y) 611, 5 N Y Supp 128 It was held not aground for refusal to grant a bill of particulars to the defendant, upon motion made on the day set for trial, where the plaintiff had de- layed so much as to render his action stale, and where he was not preju- diced by defendant's dela Y Win- chell v Martin, 14 N Y Wkl Y Di g 458 Before and After Issu e If a bill of particulars does not appear necessary to enable the party to plead, a motion before issue may be denied without prejudice to a motion after issu e Beneville v St Bridget's Church, 2 N Y Month L Bul L 5 After Several Term S In Klock v Brennan, 59 Hun ( N Y) 617, 35 N Y St Rep 745, 20 Civ Pro Rep 139, it was held that a delay of several terms after a cause was on the calen- dar did not debar the plaintiff, suing for board, care, and nursing of de- fendant's intestate, from demanding a bill of particulars of payments al- leged in the answer to have been made from time to time in liquidating the account.

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In Action for Penaltie S Post Date: Tue, 29 Jul 2008 1:33:05 +0000
WaiveRIn Peterson v Tilden, 44 Mich 168, it was held that a bill of particulars was not waived by plead- ing or noticing the case for tria L But see the following not e 2 After Pleading Florida The statutory right to a bill of particu- lars is held waived by pleading, so that it becomes discretionary with the court to order it. Waterman v Mat- tair, 5 Fla 211 Illinoi S After filing a plea in bar, a motion for a continuance for the want of a bill of particulars comes too lat e McCarthey v Mooney, 41 111 300 Marylan d After pleading to the merits it seems to be too late to ex- cept for the want of a bill of particu- lars, or because the same is defectiv e Randall v Glenn, 2 Gill (Md) 430 South Carolina The same rule pre- vails in South Carolina Long v Kin- ard, Har P ( S Car) 48 In Indiana a failure to demur or move for a bill is a waiver of the right to do So Chamness v Chamness, 53 Ind 301 3 Preston v Neale, 12 Gray (Mas S) 222; Louisiana Bank v Ballard, 7 Ho W (Mis S) 371; Kellogg v Paine, 8 How Pr ( N Y Supreme Ct) 329; Finlay v Stewart, 56 Pa St 183; C OBJECTION TO MOTION PAPER S Under the New York practice objection to the regularity of the papers, on a motion for a bill of particulars, should be made to the special ter M 2 v WHEN GRANTED 1 Generall Y Independently of statutory provisions, the court may direct a bill of particulars of the claim of either party to be delivered to the adverse party, to enable him to prepare his pleadings and evidence for the real issu e 3 A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the nature and extent of the claim set up against him with greater particularity than is required by the rules of pleadin g 4 Long v Kinard, Har P ( S Car) 47; Caldwell v Goodenough, 28 How Pr ( N Y SupeRCt) 179, a case before a refere e 1 Howe v Frazer, 117 111 191; Casterline v Day, 26 Ka N 306; An- drews v Cleveland, 3 Wen d ( N Y) 437; Masterson v New York, 4 Civ Pro Rep ( N Y Supreme Ct) 317 2 Wooster v Bateman, 4 Mis C Rep ( N Y SupeRCt) 431, 53 N Y St Rep 562 3 Turner v Twing, 9 Cus H (Mas S) 515; Co M -v Pray, 13 Pic K (Mas S) 363; Co M v Snelling, 15 Pic K (Mas S) 321; Tilton v Beecher, 59 N Y 176; Butler v Mann, 9 Abb N Ca S ( N Y Supreme Ct) 49 Fact, not La W The information, however, will be limited to questions of fact, not of la W Roberts v Row- lands, 3 M W 543 Plaintiff's counsel cannot be re- quired by a bill of particulars to fur- nish his arguments and legal reasons on which he bases his claim of inva- lidit Y Constable v Hardenbergh (Supreme Ct), 27 N Y Supp 1022 4 Burrill Law Diet (2d e d) 206; Tilton v Beecher, 59 N Y 176; Lis- comb v Agate, 51 Hun ( N Y) 291, 21 N Y St Rep 303; Kelsey v Sar- gent, 100 N Y 602; Isaac v Wilisch, 69 Hun ( N Y) 339; McKenzie v Fox (Supreme Ct), 8 N Y Supp 460; Williams v Folsom, 59 Hun ( N Y) 626, 13 N Y Supp 712; Mellen v Mellen, 63 Hun ( N Y)63i; Loewen- thal v Philadelphia Rubber Works (Supreme Ct), 19 N Y Supp 574; Garfield Nat Bank v Peck, i Mis C Rep ( N Y C P I) 126, 20 N Y Supp 650; Boardman v Trotter, 17 Civ Pro Rep ( N Y C P I) 284; Orvis v Dana, i Abb N Ca S ( N Y C P I) 268; Shaffer v Holm, 3 Civ Pro Rep ( N Y Supreme Ct) 81; Barkley v Rensselaer, etc, RCo, 27 Hun ( N Y) 515; People v Nolan, 63 How Pr ( N Y Supreme Ct) 271, 10 Abb N Ca S 471 ; Mercer v Sayre, 3 John S ( N Y) 248; Ross v Willett (Supreme Ct), 34 N Y St Rep 121; McCarney v Mc- Camm, 2 Browne (Pa) 40; Mobile, etc, RCo v Worthington, 95 Ala 598; Brown v Calvert, 4 Dana (Ky) 219 Action on Bon d In an action on a bond with collateral conditions, there being a general averment of noncom- pliance, a bill of particulars may be ordere d Bancroft v Freeman, 5 W N C (Pa ) 98 In an action upon a bond given to secure the performance of a contract, the defendant is entitled to a bill of particulars showing wherein there has been a failure to perform the contra Ct Smith v Molleson, 63 Hun ( N Y) 633, 18 N Y Supp 558 Negligence of Agent In an action against a collecting agent, particulars of the claims which he had negligent- ly failed to collect may be ordere d Wetmore v Jennys, i Barb ( N Y) 53 Under Common Count S A copy of a promissory note attached to a declara- tion containing the common counts will not authorize the plaintiff to dis- regard the order for a bill of particu- lars, it not appearing that the note was entirely relied upon for recover Y Reynolds v Woods, 22 Wen d ( N Y) 642; Garrett v Teller, 22 Wen d ( N Y)6 43 . In Action for Penaltie S In Kee v Sweeney, 66 How Pr ( N Y Supreme Ct) 447, an action to recover penal- Discretionar Y There is no inflexible rule as to the classes of cases in which a bill of particulars will be granted, but it rests within the sound judicial discretion of the court, 1 to be exercised only in ties for violation of the excise law, there was ordered to be filed an amendment or bill of particulars stat- ing the names of those to whom the sales charged to have been in violation of the statute were mad e Where Liability Denie d A defend- ant sued for a firm debt may demand a bill of particulars even though he denies his connection with the firm, or its liability to the plaintiff Board- man v Trotter, 17 Civ Pro Rep ( N Y C P I) 284, 6 N Y Supp 519 In a Suit to Recover Chattels alleged to have been leased to the defendant, the order should require only the number, description, and value of the article S Ottman v Griffin, 53 Hun ( N Y) 164, 6 N Y Supp 95 On Order to Show Caus e Where money is in court upon which an at- torney claims a lien for fees, it is not necessary to attach a bill of particulars to an order to show cause why the fund should not be applied in pay- ment of his fee S Walker v Floyd, 30 Ga 237 Action by Transferee of Not e In an action on a note payable to bearer made by defendant's testator, where the complaint alleges that the note was delivered to the payee named therein, and that it was afterwards transferred to the plaintiff, the plain- tiff will be ordered to give a bill of particulars stating the name and resi- dence of the person to whom the note was first delivered, together with the time and place of such deliver Y Chap- man v Wackerman (Supreme Ct), 26 N Y Supp 1006 Original Statement in Possession of De- mandant.

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291, 21 N Y Post Date: Tue, 29 Jul 2008 1:17:28 +0000
When it appeared that, pre- vious to a demand for a bill of items of the amounts claimed by the plain- tiff from defendant, plaintiff had furnished such a bill as an original statement of his account against the defendant, and defendant at the time of the demand had such original ac- count in court, the latter was not prej- udiced by a ruling refusing the order to furnish a bill of item S Auzerais v Naglee, 74Cal60 Action on Insurance Polic Y In an ac- tion on a policy of marine insurance, a bill of particulars of the articles de- stroyed or damaged will be ordere d Cockroft v Atlantic Mut In S Co, 9 Bos W ( N Y) 681 Running Account S Where running accounts covered a period of twenty- five years, the plaintiff was required to furnish a bill of particular S Wells v Vanaken, 39 Hun ( N Y) 315 Particulars of Awar d In an action on a contract to exchange land, on terms to be fixed by arbitration, the allegation of award in the complaint being general, a bill of particulars was ordered of the award, and of the time and circumstances of its delivery, etc, and of the meetings of the arbi- trators, and of the notices of meetings, etc Peters v Link, 2 Abb N Ca S ( N Y SupeRCt) 419 1 Arkansa S Walker v Fuller, 29 Ark 448 Massachusett S Co M v Giles, I Gray (Mas S) 466; Cc M v Wood, 4 Gray (Mas S) n ; Gardner v Gardner, 2 Gray (Mas S) 434; Blake v Everett, I Allen (Mas S) 248; Harrington v Harrington, 107 Mas S 329; Co M v Ryan, 9 Gray (Mas S) 138 New Jerse Y Reynolds -v Britton, 18 N J L 304 New York Butler v Mann, 9 Abb N Ca S ( N Y Supreme Ct) 49; D wight v Germania L In S Co, 22 Hun ( N Y) 167, 84 N Y 493; Witow- ski v Paramore, 14 N Y Wkl Y Di g 483; Blackie v Neilson, 6 Bosw ( N Y)68i; Schile v Brokhahne, 41 N Y SupeRCt 353; Moore v Belloni, 42 N Y SupeRCt 184; Fullerton v Gaylord, 7 Robt ( N Y) 551; Claflin v Smith, 66 How Pr ( N Y Su- preme Ct)i68; Tilton v Beecher, 59 N Y 176; Dowdney v Volkening, 37 N Y SupeRCt 313; Clegg v Ameri- can Newspaper Union, 7 Abb N Ca S ( N Y Supreme Ct) 59; Cunard v Francklyn, in N Y 511; Ralafsky v Boehn, i Mis C Rep ( N Y City Ct)87; Venderzeez'. Hallenbeck (Su- preme Ct), 14 N Y St Rep 447; Longde N v Brow N I How Pr, N S ( N Y) 338, 51 N Y SupeRCt 367; Liscomb v Agate, 51 Hun ( N Y). 291, 21 N Y St Rep 303; McCarron v Sire, 14 Civ Pro Rep ( N Y City Ct) 252; Kelsey v Sargent, 100 N Y 602 2 Particulars of Defens e If the answer be sufficient as a plead- ing, but indefinite as to details, the plaintiff has a right to call for a bill of particulars, either as to matters of direct defense, 2 United State S U S v Tilden, 10 Be N (U S) 547- Englan d Jones v Bewicke, L R, 5 C p 32; Wren v Weild, L R, 4 Q b 730 Abuse of Discretio N It is an abuse of discretion for a justice, acting sole- ly on his own motion, to exclude a defendant's bill of particulars of his claim of set-off merely because it was not filed within the time allowed for that purpose, after being demanded by the plaintiff, if it was in fact filed before trial, and if there was nothing to show that its reception would prej- udice the plaintiff Boatz v Berg, 51 Mich 8 Conditions Production of Book S Where the plaintiffs were executors, and not shown to possess the informa- tion necessary to make out a bill of particulars, and it appeared that the information could be obtained only from the defendants' books, an order requiring a bill should have been con- ditioned upon the defendants' pro- ducing their books for the inspection of plaintiff S Allen v Stead, 58 Hun ( N Y) 604 Copy of Tariff Rate S In a suit against a railroad company for over- charges on many items, it was held that the defendant must first furnish a copy of the tariff and charges be- fore it could call for particular S Sut- ton v Great Western RCo, 10 W R563 Withdrawing Allegatio N An order for a bill of particulars of matters specified in a portion of an answer may be sustained, although the pleader claims that the allegation was un- necessary, and offers to permit it to be stricken out.

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