#### Samuel Sykes *against*William Stokes.

on certiorari.

WALL for plaintiff.

Sufficiency mand^faj de" (a)

(a)

*Wilson vs. Wilson, 1 Hal. 95. Jones vs. Brick, 3 Hal. 269. Carman vs. Dunham, 6 Hal. 189. Brannin vs. Voorhees, 2 Gr. 591, Inslee vs. Prall, 3 Zab. 457,*affirmed on appeal, *1 Dutch. 665.*See *Acts of 1873, p. 119,*and *Craven vs. Shaird, 2 Hal. 345. Tilton vs. Brand, post 289. Denny vs. Quintin, 4 Dutch. 134. Stewart vs. Patterson, 2 Gr. 141,*and *1 Hal. 213.*

Opinion of the Court.

Kirkpatrick C. J.

The principal reason assigned for the reversal of this judgment is,

“ Because the state of demand contains two items, to wit, fifty dollars on *Ann Antrim’s*account, and twenty-two dollars for *Sarah Middleton,*which ought not to be charged to the plaintiff.”

Upon looking into the account, we find among other charges, these two:

> *2441819. *March*24. To fifty dollars on *Ann Antrim’s*account, ... $50

> *October*30. To twenty-two dollars for *Sarah. Middleton,*- $22

Now it is not easy to see why these charges are unlawful. These-sums of money'may have been-paid to these people on account of the defendant, and at their request, the first on an account which *Ann Antrim*may have had against the defendant, and the second for some other reason not appearing here; and the fair import of the entries is so. If such payment had been made by the plaintiff, in what other way could the entries have been made ? It is to be considered that this is a copy of a book account, and we certainly never enter in a book, the whole history of a transaction. This has no resemblance to the charging of one man for the debt of another, and even if it had the note or writing necessary to support it, would not necessarily be entered in the book. It is enough if it be made out upon the trial. Here were- many witnesses, the fairness of the demand may have *been fully proved, and even if an order or note in writing had been necessary to support the demand, it may have been given in evidence. The justice is not obliged to enter in his docket, the paper evidence read upon the trial. And every thing shall be presumed in favour of the judgment which is not inconsistent with the record.

Therefore let the judgment be affirmed.

Southard J.

dissented. The objections to this judgment, result from the state of demand containing the two following items. “ Fifty dollars on *Ann Antrim’s*account.” “ Twenty-two dollars for *Sarah Middleton.”*

Every state of demand, however informal it may be, must contain a legal cause of action; it must set out the right of the plaintiff to recover the money claimed. It must not leave that right to mere presumption and guessing, as to what nature it is, but shew it clearly and explicit^. This, I apprehend, is not done. No one on reading these charges can tell except by a guess, why the plaintiff paid the money, or why he claims it of defendant. *245Who was *'Ann Antrim ?*What account of hers, was it, on which the money was paid ? Was it against the ant, and if so, did defendant request the plaintiff to pay? for without such request the payment would create no right against him. Or was it so much money paid for *Ann Antrim,*and which, for some cause, to us inexplicable, he chose to charge upon defendant ? I am prepared to answer to none of these questions, and I am as little prepared to sanction a state of demand which will not enable me to answer them. The charge about *Sarah Middleton,*is subject to the same objections and even more strongly. I am therefore in favour of a reversal.

In this opinion I apprehend I am supported by authority. See *Ward*v. *Eastach, Pen.*465. *Babbit*v. *De Camp,*647, 464, 525, 631, 640. By all these cases it appears, that, the state of demand must shew a legal right to recover of defendant, and that “ money paid to his use,” “had to the use of plaintiff,” &c. are all insufficient; though they actually allege money had by defendant, in a way, that in other courts, would raise an assumpsit.

Judgment affirmed.