Edwards v. Nichols

If Nichols were present, he could not testify, in this case under your statute ; there is no reason? therefore, for the continuance of the case.

*20The next clay the case come on for trial. As it wait conceded by the counsel for the plaintiff, that the demand in question was for services performed as an attorney and counsellor at law, and for disbursements in several cases in which he had been thus employed, Ingrrsoll and Staples urged an objection to the admission of any testimony to support the declaration, for the following reasons;

1. An action of assumpsit will not lie to recover the value of such articles delivered, or such services performed, as are the proper subject of charge on book. The remedy, in such cases, is by action of book debt, and by that only. This remedy has grown up with the state of Connecticut, and lias had an important influence upon our modes and habits of business. All persons, taking it for an established position, that they can support their charges by their own testimony', have become negligent of procuring and preserving other evidence. It must be very pernicious to this community, therefore, that this ancient privilege, and one so much relied upon, should be taken away at the choice of one party, who must be supposed to know his advantages, and'that the other party should be obliged to defend himself, deprived of the accustomed mode of substantiating his charges and payments. It is, in short, no less than taking from parties that testimony to which, from long and perhaps universal usage, they think themselves entitled.

Besides, in our action of book debt, the defendant has the opportunity of setting off all his charges against those of the plaintiff, and, if they exceed the plaintiff’s, of recovering his balance and costs.(a) This is certainly a very beneficial provision, both as it prevents litigation and expense, and as it is a security that one party shall not gain an undue advantage over the other. Such a provision ought not to be defeated ; nor are the forms of setion by which it is secured, to be rashly invaded.

*212. The declaration is too general. It ought to have stated, particularly, the labour done, and services performed, in order that the defendant may come prepared to repel the claim. Here it is not even hinted in wljat capacity or character the plaintiff acted, while performing these services, nor is the nature of the services at all mentioned. Our courts have decided, that indebitatus assumpsit shall not be supported by a general promise to pay the plaintiff all the defendant owed him. The promise must have a particular reference to the very debt sued for; and ipust not be capable of an application to other debts. The plaintiff does not offer to prove any promise to pay the particular items; but only a general acknowledgment of the debt. Indeed, if he did offer particular testimony, it could not be gone into on the general counts.

3. The counts which declare upon the services performed for AIcolv, and the moneys paid to him, are within the statute of frauds and perjuries, as the promise of the defendant is an engagement to pay the debt of another. It is admitted, that in one of these counts, the allegations are made with sufficient particularity.

Daggett and Bristol, ior the plaintiff.

1. On the same principles that the oath of the party has not been allowed in this case, the action of book debt itself, being an anomaly In our ,law, ought not to be extended by construction; much less ought it to be so construed as to defeat the remedies afforded by the common law. The statute respecting book debts has not prohibited a resort to the common law remedy in all proper cases ; and consequently all other modes of redress remain the same as they were before that statute. A statute giving a new remedy, dries not take away a remedy furnished by the common law, unless it be expressly taken away; but, in all such cases, the statute and. common *22law remedies are concurrent. Thus, it was never imagined that the statute giving threefold damages for cutting trees on another’s land (a) had abolished the remedy by trespass, at the'Common law. But the statute regulating book debts does not profess to give the form of action ; it merely regulates the action by allowing the parties to testify, and enabling the defendant to recover if the balance is in his favour. It is probable the form of book debt had been adopted in practice long before the Statute was made.

Nor are we to forget, that this action is in derogation of the common law, and a direct invasion of the established rules of evidence.

As to the objection, that the defendant is deprived of his oath, it may be answered, that the plaintiff is deprived of the same advantage, and it is as likely to be an inconvenience to him as to the other party ; and as he pursues a common law remedy, he must establish his claim by common law proof.

This objection, in a more specious form, was originally-made to all actions of assumpsit, where debt on simple contract might be brought at the common law. The reason then assigned was, that this action took away the defendant’s wager of law, and thus bereaved him of the benefit which the law gave him. 4 Co. Rep. 92. Yet the court held, in Slade’s case, that assumpsit was a prepare medy, though it deprived the defendant of his wager of law.

2. It was unnecessary to state, with more particularity, the services performed. If the plaintiff is able to show that any services, which could come under these allegations, have been performed by him for the defendant, he, on the *23other hand, must come prepared to show that these services have been paid for, or discharged, or that some good and legal reason exists why they should not be remunerated. If any thing further than this general averment is required, how particular must the plaintiff be ? Must he show the days, hours and minutes, he has been employed ? Or must he state the number of cases in which he was retained ? the several terms which intervened, the consultations had, or arguments made ? This would swell the record to an insupportable and endless prolixity. Neither precedent, nor authority, can be cited in support of the doctrine advanced. No cases in this state can be cited, where great particularity has been held to be necessary. It is the constant course of practice here, to make general averments as in the present case. In England, and by the supreme court of errors in this state, actions precisely like this have been held maintainable.

It may be well to observe here, since the action of book debt is so zealously advocated by the counsel for the defendant, that no form of action used in our courts of justice is more general than that of book debt; nor is it possible to conceive of any form more general. It simply demands that the defendant render to the plaintiff such a sum, which he owes by book.

But lest any inconvenience should result to the defendant, or he should be taken by surprise, the court, may order the plaintiff to furnish him seasonably with oyer of his account, which must be a more accurate specification of his demand than any declaration can be supposed to afford. This has been voluntarily done in the present case, for more than eighteen months.

3. The counts applicable to the services rendered, and the money paid to Alcox, allege, that they were performed at the special instance and request of the defendant, and we offer to prove that request, and the services per*24formed in consequence of it. The undertaking of Nichoi», then, is an original undertaking to pay for those services, and not collateral to any contract or obligation of Alcox,

The counsel for the defendant, in reply, commented upon the words of the statute, “ In all actions on book debts,” which seemed to imply, that different actions might be brought for articles and services commonly charged on book. Since, however, this action has been decided by the court not to be an “ action on book,” by the exclusion of the defendant’s oath, no evidence ought to be admitted to substantiate a book-debt claim.

To this it was answered, by the counsel for the plaintiff, that the words “ actions on book debts,” had been always understood to idean the same as “ actions o/book debts.”

Livingston, J., after requesting to hear the statute read, observed : From the reading of the statute 1 am convinced that this action is well brought; and that assumpsit and the book-debt action are concurrent remedies.

As to the legality of permitting parties to testify in the action of assumfuil, on the ground that it is an action on book, I have doubts with respect to the correctness of my decision yesterday. I am far from Certain that the party ought to be excluded ; and I hope that no inconvenience will result to the defendant in this case from that decision.

I think the objection, that the declaration is too general, cannot prevail. In the English practice and our own, declarations as indefinite as this may be found; though it is usual to declare for services rendered as an attorney, physician, mechanic, &e. Very little particularity is demanded in assumpsit, except in the count for money had *25and received, where more exactness and precision is required. This is open for discussion, however, in a 1 r 1 ' future stage of the case.

The evidence was admitted, and the jury found a verdict for the plaintiff for the amount of his account.

Upon a motion in arrest,

lngereoll and Staples took two exceptions.

1. The declaration is too general. The same arguments were relied on to support this position that have Seen stated in the objection to the testimony.

2. It does not appear by the record that the plaintiff is a citizen of the state of Neio-Yark, or the defendant a citizen of the state of Connecticut. That this should appear is absolutely necessary; and this court has, without motion, ordered a case to be erased from the docket, on discovering that the parties did not appear to be citizens of different states.

Daggett and Bristol, contra.

The first exception comes too late after verdict, when every promise alleged in the declaration is taken to be an express promise, or even a promise in writing, if necessary to sustain the verdict.

But an allegation of work and labour generally, without setting out what sort of labour, or in what manner it was performed, is good, and agreeable to numerous precedents in the books of forms. Some doubt was formerly entertained on this point, but the question has been long since put at rest. Car them, 276. 1 Vent. 44. Sid. 425. The best pleaders have latterly adopted *26this mode, as the plaintiff would be restricted in his proof, if the declaration were more special.

2. The plaintiff and defendant are well described as citizens of the states of New- York and Connecticut. The plaintiff is alleged to be a citizen of the district of New York, and the defendant a citizen of the district of Connecticut. By the act of congress to establish the judicial courts of the United States, vol. 1. U. S. Laws, 48., the United States are divided into districts; and the states of New- York and Connecticut are respectively-constituted districts of the same name. The same territorial limits, as well as the same body politic are, therefore, described by the terms district of Connecticut, as if the word state had been used. The district and state of Connecticut are synonymous and coextensive, and the parties are described as citizens of the states of Neto-York and Connecticut, by language perfectly definite and certain.

Livingston, J. overruled the motion in arrest, and ordered judgment to be entered.