Bebinger v. Sweet.

defrauding plaintiff out of his property, and rights. It was not, therefore, necessary to set out those facts with the same particularity as if relying solely upon them for a cause of action.

The action being such as I have indicated, it was not necessary to allege the prosecution had ended. It is essentially an action against the defendant for an abuse. of the process of the law, in order illegally, and wrongfully, by that means, to compel plaintiff to surrender up his property and rights to the defendant. In such a case, it is unnecessary to allege or prove the termination of the prosecution. The action may be maintained without it (2 Greenl. Ev. § 452; Grainger v. Hill, 4 Bing. N. C. 212).

This renders it unnecessary to consider whether the prosecution was ended in fact, or any objection was made upon the trial, entitling the defendant to raise that question on appeal.

An exception is also taken to the charge of the judge upon the subject of conversion. A demand and refusal is undoubtedly only evidence of conversion. When, however, the judge says, a demand and neglect to return is a conversion, the meaning and intent is quite evident. A general exception to such charge, without pointing out or calling attention to critical inaccuracy, would not present an error to be here regarded.

It is simply a catch and a quibble. It is not fair to the court; but in reading the whole charge it cannot be contended that the question of defendant's right to refuse to deliver the property was not fairly submitted to the jury.

A demand was properly made; the defendant did not deliver it up. That was conclusive evidence of a conversion, if defendant had no right to retain it. Whether he had the right to retain it, was fairly submitted to the jury. The defendant has no just cause to

Orvis v. Dana.

complain of the manner of such submission. It was quite as favorable as defendant was entitled to; indeed, it might with great force be contended that the original taking was wrongful, and no demand necessary.

[The learned judge then disposed of some minor exceptions, and concluded:]-No error is discovered to the prejudice of the defendant for which, in our judg ment, a new trial should be granted.

The judgment and order are therefore affirmed with costs.

ORVIS v. DANA.

N. Y. Common Pleas; General Term, 1876.

BILL OF PARTICULARS IN LIBEL.

While the court have the power, under the Code (§§ 158, 469; 59 N. Y. 176), as at common law, to order a defendant to furnish a bill of particulars, this power ought not to be exercised in actions of libel.

If an answer in justification is not sufficiently particular, defendant's remedy is to move to make it more definite and certain, or to lie by and object at the trial to the admission of evidence under it. An affidavit to move for particulars, in tort, must be to the effect that the party does not believe, and cannot form an opinion as to the matters with which he is charged; that the charge is so vague that he does not know what he is charged with. An affidavit that he is "ignorant of the particulars and facts which defendants expect to prove," or that he “has no knowledge, information, or belief as to the persons, times, or places, of the facts by which the defendants propose to establish the material averments," &c., is wholly insufficient to sustain an order for such a bill.

The English practice of ordering particulars of justification results from the fact that the particulars are not there required in pleading, as they are here.

Appeals from orders for particulars.

Orvis v. Dana.

Charles B. Orvis sued Charles A. Dana for alleged libel in the publication in the New York Sun, of statements charging plaintiff with commercial frauds, &c. He also sued George Jones and Lewis J. Jennings for the publication in the New York Times of a similar article. Both articles gave numerous particulars. In the first action, defendant's answer alleged generally the truth of the article in justification, besides matter in mitigation; in the second, defendants justified in detail, alleging also matter in mitigation.

In both actions plaintiff moved for and obtained, at special term, orders that defendants serve bills of particulars in whole or in part.

The order in the action against The Times was made before the motion in the action against The Sun was determined.

The opinion delivered upon the motion in the latter action, and which is referred to by the court in the opinion on appeal, was as follows:

VAN BRUNT, J.-The only authority which plaintiff has been able to cite, in support of his novel application, is Tilton v. Beecher, 59 N. Y. 176. It seems to have been assumed that the court of appeals, in the decision of that case, has put forth some new and hitherto unfamiliar doctrines with reference to the granting of applications for bills of particulars. But an examination of this case will show that that decision was strictly in accordance with the practice before the Code, and is in entire harmony with section 158 of the Code, as amended in 1851, and does not support the position of the plaintiff on this motion. It is true that the court in that case say that: "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 matters for which he is to be put on trial with greater particularity than is required by the rules of pleading."

Orvis v. Dana.

This sentence in the opinion, standing alone and read by itself, would support the proposition that a party to an action might in any case be required to furnish a “bill of particulars" of his claim or defense; but an examination of the whole opinion clearly shows that the court did not intend to lay down any doctrine so broad and comprehensive as this.

Just prior to the use of the sentence which I have quoted, the learned justice who wrote the opinion in the court of appeals had been calling attention to the fact that when a "bill of particulars" is spoken of, it is ordinarily understood as referring to a "bill of particulars" of the dates and description of the transactions out of which, in actions upon money demands consisting of various items, the indebtedness is claimed to have arisen, and that in such cases it is granted as a matter of course; but that it is an error to suppose that "bills of particulars" are confined to actions involving an account, or to actions for the recovery of money demands arising upon contract, and then he makes use of the language which I have quoted.

In support of this proposition are cited various authorities showing that in actions of libel, escape, trespass, trover and in ejectment," the plaintiff" has been ordered to furnish a bill of particulars, and that also in criminal cases the instances are frequent, where the courts have, by analogy to the practice in civil actions, ordered the prosecutor to furnish a bill of particulars; and that in England it is very common at the present day to order particulars to be filed in an action for divorce, either on the ground of cruelty or adultery.

The learned justice then refers to the rule laid down by the chancellor in the case of Wood v. Wood, 2 Paige, 108, governing the pleadings in actions for di

vorce.

After referring to the case of the Commonwealth v. Snelling, 15 Pick. 321, and Early v. Smith, 12 Irish

Orvis v. Dana.

Com. L. Appendix, 35, he says: "A reference to a few of the authorities upon which these decisions were founded will show that in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised before-hand of the particulars of the charge which he is expected to meet, the court has authority to compel the adverse party to specify those particulars so far as in his power," and then cites numerous cases in this country and in England where the plaintiff has been ordered to file a bill of particulars, but not a single case where such an order has been made as against a defendant.

This condition of the authorities would seem to show that the court of appeals, in determining the practice prior to the amendment of 1851 to section 158 of the Code of Procedure, intended to support the proposition as lastly stated by the learned justice who wrote the opinion of that court, rather than the one first above quoted.

A brief examination of the last clause of section 158 will show that this view is in entire harmony with the provisions of that section.

That section, after providing that in actions brought upon an account, or where an account is relied upon as a matter of defense, the adverse party may exact as a matter of right a bill of particulars, and that the court may order a further account when the one delivered is defective, says, that "the court may in all cases order a bill of particulars of the claim of either party to be furnished."

It is to be observed that under this clause of section 158, the power of the court to order a bill of particulars is limited to the case of a "claim" being made upon one party or the other, and it is the particulars of this "claim" only which can be ordered.

The use of the word "claim" in this connection,