Preston v. Neale
Massachusetts Supreme Judicial Court
Action of contract on two counts: 1st. For use and occupation of certain rooms; 2d. Upon an account annexed, which included a charge for storage of certain goods. At the trial in the superior court of Suffolk, before Huntington, J., after the case was opened to the jury, the defendant moved to strike out the first count, because the plaintiff had filed no bill of particulars. But the judge overruled the motion.
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Action of contract on two counts: 1st. For use and occupation of certain rooms; 2d. Upon an account annexed, which included a charge for storage of certain goods. At the trial in the superior court of Suffolk, before Huntington, J., after the case was opened to the jury, the defendant moved to strike out the first count, because the plaintiff had filed no bill of particulars. But the judge overruled the motion. It appeared that both counts were for the same cause of action ; that when the defendant quitted the premises hired of the plaintiff, he left there two or three trunks and a stove,…
1Opinion of the CourtMetcalf, J.
The exception to the judge’s refusal to strike out the first count, for want of a bill of particulars, is overruled. The defendant’s proper course was either to move the court to order such a bill to be filed, or to demur to the count. St. 1852, c. 312, §§ 4, 21. By going to trial, without objecting to the want of such bill, he'waived his right to have it filed.
The exception to the ruling, that the plaintiff had a lien on the trunks and stove left in her house by the defendant, is sustained. It is not shown nor alleged that these things were left in her house with her consent. She therefore…
2Cases cited5 opinions
- Townes v. DurbinCourt of Appeals of Kentucky · 1860
- Amory v. FlynNew York Supreme Court · 1813
- Wilson v. GuytonCourt of Appeals of Maryland · 1849
- Reeder v. Anderson's AdministratorsCourt of Appeals of Kentucky · 1836
- Baker v. HoagNew York Supreme Court · 1848
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