Orvis v. Dana.

whatever by way of justification, because the charges in the alleged libel are so vague and general, and that all he has pleaded in justification, is the general averment that the charges are true; not a single specific fact being stated in the answer. If such defects in an answer could be or should be supplied by a bill of particulars, the plaintiff would actually be building up Dana's defense; but "a bill of particulars is only necessary when justice demands that a party should be apprised of matters with greater particularity than is required by the rules of pleading."

It certainly is not the office of a bill of particulars to make a bad answer good. The rules of pleading require that a justification of a general imputation upon the plaintiff's character should state specific facts showing in what manner and in what instances he has misconducted himself; and it must extend to every part of the libel (1 Chitty's Pl. marg. p. 494).

Thus it appears that the common law rules of pleading, which in this respect we have retained, require in the answer the same detailed and specific information that a perfect bill of particulars would contain.

Moreover, we must not lose sight of the fact that a bill of particulars is no part of the record (Kreiss v. d. Seligman, 8 Barb. 440).

A justification should be part of the record (Honess 7. Stubbs, 7 C. B. N. S. 555).

In closing these observations, it is proper to inquire what greater necessity has the plaintiff for a bill of particulars, than any other plaintiff in a libel suit in the last three hundred years has had?

In England, until a general form of justification was permitted, no plaintiff ever applied for or obtained a bill of particulars. Had the rules of pleading remained unchanged, there would not be a solitary precedent for the plaintiff's application. We have not changed the ancient rules. The reason which caused

Hoff v. Pentz.

the ordering of particulars in libel suits in England, has no application, and no place here.

Affirming the power of the court to order a bill of particulars to be furnished by either party in any action, I am of the opinion that, for the reasons that I have given, the plaintiff's application for bills of particulars ought to have been denied.

The orders of Judge J. F. DALY and Judge VAN BRUNT for bills of particulars should be reversed, with ten dollars costs and the disbursements to the defendants Jones and Jennings; and ten dollars and the disbursements to the defendant Dana.

HOFF v. PENTZ.

N. Y. Supreme Ct., First Department; Chambers, November, 1876.

ACCOUNT.

Under section 158 of the Code, the court cannot require a further or more particular account, after service of an account stated, alleged in the pleading. An account stated cannot be altered. The remedy is an examination of the party.

Motion for a better account than one already furnished.

Newton W. Hoff, trustee appointed to fill a vacancy in the office of trustee under the last will, &c., of John Pentz, deceased, caused by the death of Smith Barker, brought an action against George B. Pentz, the defendant, for $14,500, part of $47,402 received by him from the city of New York for awards for lands belonging to the plaintiff's estate, which lands had been taken for the opening of St. Nicholas avenue.

Hoff v. Pentz.

The defendant demurred to the complaint; but the demurrer was overruled and the order overruling it sustained at general term. He afterwards was allowed to answer; and among other defenses set up an account stated. The plaintiff, under section 158 of the Code, demanded a copy of the account, which has been served. One of the items contained in this account was as follows-"Contract, $14,500." The plaintiff claimed that the account was defective in respect to this item, in that it did not specify what the contract was for, or to whom the money was paid, or when it was paid, or for what it was paid. The question came up on an order to show cause why a better account in these respects should not be furnished.

George Hill, for the motion,-Cited: Johnson v. Mallory, 2 Robt. 683; Fullerton v. Gaylord, 7 Robt. 556; Dowdney v. Volkening, 37 Super. Ct. (5 J. & S.) 316; Kellogg v. Paine, 8 How. Pr. 329; Code, § 158; Moran v. Morrissey, 18 Abb. Pr. 134; Mason v. Ring, 10 Bosw. 605; Mathews v. Hubbard, 47 N. Y. 428; Lockwood v. Thorne, 18 N. Y. 292; Chubbuck v. Vernam, 42 N. Y. 432.

James A. Deering, opposed,—Cited: Phillips v. Suydam, 6 Abb. Pr. N. S. 289; Bowman v. Sheldon, 5 Sandf. 662; Cadwell v. Goodenough, 28 How. Pr. 479.

LAWRENCE, J.-One of the defenses in this case set up in the defendant's answer is an account stated. A copy of the alleged account stated, purporting to be dated January 1, 1870, has been served upon the plaintiff's attorney, who now moves for a further and better account of an item in said account contained. If it be true that the account served is an account stated between Barker and the defendant, the defendant cannot, so far as I am able to see, serve a further account with Barker; it cannot be altered. The effect of the account is something to be determined on the

VOL. I-13

Morten v. Domestic Telegraph Co.

trial. If the account is false and fraudulent, that fact can be shown on the trial, and its force avoided. I do not consider the plaintiff as entitled to relief under section 158 of the Code. But this is a case in which it is clear that an examination of the defendant before trial may contribute materially to aid the plaintiff; and, as further relief is asked for, I am inclined to entertain an application for such examination.

MORTEN v. DOMESTIC TELEGRAPH CO.

N. Y. Supreme Court, First Department; Chambers, November, 1876.

SECURITY FOR COSTS.-REMOVAL OF PLAINTIFF.

Security for costs cannot be required of a plaintiff, because of removal from the jurisdiction, unless he has actually removed, after the commencement of the action.

Motion for security for costs.

Action was commenced by the plaintiff, Alexander Morten, to recover balance due for services rendered. The answer was a general denial, and payment. After the case was on the short cause calendar, and had been adjourned once or twice, and finally set down for November 10, defendant's attorney discovered that plaintiff was an Englishman, and has been ordered by his physician to return to England for the benefit of his health. When the case was called on November 10, the defendant's counsel applied for and obtained a further adjournment to the 17th of the month. Plaintiff's attorney, in opposing the motion, stated in open court that the passage of his client for Europe, had alreadybeen engaged for the 18th of the same month. Upon affidavits showing this state of facts, and also that the

Morten v. Domestic Telegraph Co.

plaintiff, on his departure, would leave no family, or tangible property or business connection, and that any judgment which defendant might obtain upon the trial, could not be collected unless security for costs was given, this motion was made.

Charles Edward Souther, for the motion.-I. 2 R. S. Edm. Ed. 644, § 2, is as follows: "If, after the commencement of the suit, the plaintiff shall become non-resident, or all the plaintiffs shall become nonresidents, or insolvent and be discharged or exonerated as aforesaid, or be sentenced to state prison for any term less than for life, the defendant may also require such security to be filed." "Shall become" does not mean that the non-residence must be an actual fact ere the motion can be made; in that case its language had been "has become," or "shall have become." "Shall" has in statutory construction the force of "may," and signifies a possibility, the fact of which will be determined affirmatively or negatively, as the judgment of the court on the papers before it shall determine (See Sedgwick on Construction of Statutes, 376, note).

II. This construction is in harmony with the cases which hold that the fact that the absence is only temporary, or involuntary, is no answer to the application for security (See Gilbert v. Gilbert, 2 Paige, 603; Long v. Hall, 3 Sandf. 729; Gelch v. Branby, 1 Bos. 657).

A. W. Holmes, opposed.

LAWRENCE, J.-I think that section 2 of the Revised Statutes, part 3, chapter 10, title 2, contemplates an actual removal by the plaintiff, after the commencement of the action, before he can be compelled to file security for costs (see Gilbert v. Gilbert, 2 Paige, 603).

Motion denied.

No appeal was taken.