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Boyles v. M'Eowen

Boyles v. M'Eowen, 3 N.J.L. 677 (1810)
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Court
Supreme Court of New Jersey · State Highest Courts
Decided
September 15, 1810
Judges
Kirkpatrick, Pennington, Rossell
Citations
3 N.J.L. 677
Cited by 0
Summary
Physician’s bill may be rendered after suit, if before the trial. The action below was brought to recover a Physician’s bill. It appeared that the bill of particulars had not been furnished the defendant before the action was hrought, but had been furnished several days before the day of trial. Also, it was alledged that the declarations of the wife of the defendant were given in evidence at the trial, as to which, the justice states the following fact: — That he admitted the confessions of the wife, made in the presence of her husband;, that medicine had been furnished by the plaintiff when her husband was not at home. It also appeared by affidavits, that after the parties met at the justice’s on the day of trial, that the plaintiff mentioned to the constable that he was not satisfied with one of the jurymen which he had summoned, alledging that the juryman was his enemy; on which the constable before the return of the venire, struck his name out of the panel and summoned another juryman; [*] that this was known to the-defendant, before the jury were sworn; the constable swore that as to this, he consulted Mr. Boylan, the attorney of the defendant, who informed him that he had a right to do. it. . It was now however denied by the counsel for the defendant below, the plaintiff in certiorari — that Mr. Boylan was the attorney of the defendant; and one of the witnesses swore' that he did not act as such on the trial. Three objections were taken to the proceedings of the justice. ‘ • 1st. That the bill of particulars ought to have been delivered to the defendant before the commencement of the action. " ■ 2d. That the declaration or confession of the wife ought not to have been given in evidence against the husband. 3d. That there was an improper practice between the plaintiff below, and the constable, respecting the summoning the jury.

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Opinion of the Court — Pennington

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Pennington, J.

— The act of Assembly in respect to a bill of particulars of a Physician’s account, is very deficient, as to the time of delivery; it is reasonable that it should be delivered before the commencement of the suit, but the act does not require it; it ought however, to be delivered time enough before trial, for the defendant to examine it, and have it taxed; - and it was so in this case, and therefore the judgment ought not to be disturbed on that ground. As to the declarations of the wife of the- defendant below, it is a general rule that the declarations of the wife shall not be given in evidence against her husband, but there are exceptions-to this rule; the declarations of the wife, while she is acting as agent or, attorney foi* her husband relative to the subject matter, and accompanying the act of agency, would certainly be good evidence against the husband, although her declarations on the same subject, made after the [*] transaction, would not. It is every day’s practice to admit in evidence any thing said in the presence of the party, and uncontradicted by him, and whether this is said by a stranger, by the wife of the party, or even by the opposite party himself, it makes no difference; in this point of view I think the testimony admissible. I do" not think it was correct in the plaintiff below to talk to the constable relative to the juryman, but no doubt can be entertained that a constable, before he returns the venire, may strike one name out of the panel and put in any other;. it is liis duty to get an impartial jury, and if he finds that he has not summoned proper men, he may, before the return of the venire, coi’rect it, but lie ought not to do this on the suggestion or representations of either party. There is also a wide difference between *501 striking the name of a juryman out of the panel, and that of putting a name on at the suggestion of a party; however, whatever was done in this respect was known to the defendant below before the jury were sworn, he should -then have made his challenge j it is too late after trial, verdict and judgment, to make this objection.

Rossell, J.

. -Besides what has already been said, it appears by the affidavit of the constable that the attorney of the defendant had been consulted as to the juryman, and had approved of the measure.

Kirkpatrick, C. J.

— Gave no opinion, being related to Dr. M‘Eowen, the plaintiff below.

Judgment affirmed.

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