Stolp v. Van Cortland

By the Court, Sutherland, J. The account which the plaintiff below exhibited to and left with the justice at the time of declaring and joining issue, must be considered a part of the declaration. The case of Ehel v. Smith, (3 Caines, 187,) is a direct authority to this point. It is not denied if it had been attached to or incorporated in the declaration, that it would have been sufficiently precise. But it is said that the justice in his return states that the “plaintiff declared on book account generally and failure in contract and that it is contradicting the return to shew that at the same time he delivered an account to the justice, which, in judgment of law, became a part of the declaration. The justice states in his return that he makes return of the proceedings and judgment before him; and among the papers returned and filed by him in this account, though it was not fastened to the return itself. The plaintiff offered to prove these facts, and to substantiate the account by proof; this ^evidence was rejected by the court. The plaintiff was prohibited from proving that the account was delivered to the justice at the time of declaring, and was returned and filed by him in the court of common pleas; and having rejected that -evidence, proof of the items of the account was rejected because the declaration was too vague to admit it, and the plaintiff was nonsuited. The account was a part of the proceedings returned by the justice, and the plaintiff was entitled to the benefit of the fact of its having been returned by him: the legal conclusion from that fact is, that it was a part of the plaintiff’s declaration. This, in no respect, contradicts the return. Suppose the justice should return that the plaintiff in an action before him declared in assumpsit, with? [494] out stating any thing more, and should attach to the return a forma¡ declaration in assumpsit between the same parties can- there be a doubt that this would properly be considered a declaration ? Whether it was actually attached to the return, or the papers were all put into a bundle and filed, can* not be material; they are the proceedings before the justice returned by him. The case of Bowditch v. Salisbury, (9 Johns. R. 366,) would seem to shew that the general form of declaring/or a book account, without any specification, was good. (See, also, 3 John. R. 436.) On the other ground, however, I think the judgment should be reversed, and a venire de novo awarded to Onondaga common pleas.