McLaughlin's Administrator v. Samuel Turner

McLaughlin’s Administrator v. Samuel Turner. Upon a count “for sundry matters properly chargeable in account, as by account annexed,” it is not necessary that the account should be such as would be evidence per ' se under the Act of Maryland, 1729, c. 20. The day stated in the declaration is not material, so that the articles were delivered and payable before the action brought. The 1st count of the declaration stated that the defendant was indebted to the plaintiff “ for sundry matters properly chargeable in account, as by an account thereunto annexed.” The 2d count was for board and lodging, and other necessaries for twelve months. The plaintiff produced an account for a tavern-bill, and proved that he presented the account to the defendant, who said there were other credits on a former account, and he would produce them and settle the account. ' Mr. Caldwell and Mr. Morsell, for the defendant, contended that the evidence did not support the first co.unt, and that no evidence could be given uporr that count, but an account -which would in itself have .been evidence under the act of 1729, c. 20, under which act alone they contended the count was good. The issues were non assumpsit and limitations. There was no demurrer. [MAJORITY — But the Court] But the Court (nem. con.) said, if the count is bad, he might have demurred, or might move in arrest of judgment. But if the count is good, there can be no question but that the evidence, offered will support it. Mr. Morsell contended also, that the plaintiff could not give in evidence any charge for articles delivered before the 4th of May, 1805, the day laid in the declaration. But the Court (nem. con.) said the day was immaterial, so that the articles were delivered and payable before the action brought.