dissenting:
I am unable to concur in the judgment reversing this case.
The claim of Parish for an interest in which this action was brought was against the United States.
Ramsey had been chief clerk in the office of the Surgeon General of the United States, in which the contract with Parish had been made, and from which he resigned in 1894.
By an act of Congress it is unlawful for any employee of the United States during his term of service and for two years thereafter, to render aid to anyone in the prosecution of a claim against the United States.
The declaration of the plaintiff was based upon the contract dated October 9, 1900. The bill of particulars simply stated that Parish agreed to pay plaintiff 5 per cent of the proceeds of the ice contract, which was finally allowed. Said percentage amounted to $9,067.94, with interest from June 5, 1909. '
Defendant moved for an amended bill of particulars showing the contract sued on; a correct statement of any pecuniary aid claimed to have been rendered, with the exact character, nature, and extent of the same. Plaintiff filed an amended statement *455setting out a copy of the obligations sued on, and stated the following loans or advances made to Parish:
February 1-1, 1871, $100.
January 20, 1875, $90.
August 9, 1881, $15.
September 29, 1900, $180.
October 26, 1900, $900.
The three first of these items were advanced at a time when the law prohibited any aid to a claimant by an employee of the United States. Only one, that for $180, was made before the execution of the instrument. The last item, dated October 26, 1900, was made after the execution of the contract, and formed no part of the consideration therefor. It may be inferred that the other items were made for aid in the prosecution of the claim from the fact that plaintiff took an assignment of an interest in the claim.
The case was tried by jury and resulted in a verdict for the amount sued for. The judgment thereon was reversed for error in charging the jury that the contract was prima facie evidence of the consideration.
Upon the return of the cause, and in obedience to the order of the court, it became the duty of the plaintiff, either by an amendment to her declaration or by an amended bill of particular’s, to make a statement showing that no money furnished Parish or aid furnished him in any way during the term of his service, or within two years thereafter, had been furnished to aid in the prosecution of the said claim before Congress. In order to make this clear defendant was entitled to request a broad statement of the nature of the aid given and the items of money advanced, with their dates, in order that it might be made to appear either that there was or was not a legal consideration for the alleged promise. That this was the purpose of the bill of particulars under our practice is shown in Moses v. Taylor, 6 Mackey, 255, 277, where the court says: “There is no rule of common law, nor were there any rules of this court, which compelled a plaintiff to file any bill of particulars with his declaration. But it was always the privilege of the defend*456ant to compel the plaintiff to reduce the generality of his common counts to certainty by filing a bill of particulars; and when it was filed under any count, it became, by relation back, a part of the original declaration.” See also Chesapeake & O. Canal Co. v. Knapp, 9 Pet. 541, 564, 9 L. ed. 222, 231, where it was said: “A bill of particulars, it is contended, when demanded, becomes a part of the declaration; and with the exception of certain averments, it should contain equal certainty. There can be no doubt that a bill of particulars should be so specific as to inform the defendant substantially on what the plaintiff’s action is founded. This is the object of the bill, and if it fall short of this, its tendency must be to mislead the defendant, rather than to enlighten him. As the bill of particulars is filed before the trial, it is always in the power of the defendant to object to its want of precision, and the court will require it to be amended before the commencement of the trial. And if this be not the only mode of taking advantage of any defect in the bill, in practice, it is certainly the most convenient 'for the parties.” See also 33 Cyc. 565.
The plaintiff was called upon several times for a specific statement of the grounds of her claim; namely, to set out the facts showing a legal consideration for the contract sued upon.
The dates of the items of money set forth in the bill of particulars, save two, show that at that time Ramsey was in the government service, and one was dated after the contract sued, on. It was important, therefore, to show that the promise to pay an interest in the said claim then pending before Congress should show a legal consideration. Bailey v. New York C. & H. R. R. Co. 22 Wall. 604, 638, 22 L. ed. 840, 849. In this case it was said: “Mere irregularities may be passed over without remark, as the suit is an action of assumpsit brought by the plaintiffs to recover back money which they paid to the collector, and the burden is upon them to show that the defendant ex cequo el bono is bound to refund the amount which they paid. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in good conscience he is boxmd to pay to the plaintiff. Where the *457caso sliows that it is the duty of the defendant to pay, the law imputes a promise to fulfil that obligation, but the law never implies a promise to pay unless some duty creates such an obligation, and more especially it never implies a promise to do an act contrary to duty or contrary to law.”
The plaintiff having failed to comply with two orders requiring this amended bill of particulars, her case was dismissed by the court.
In my opinion the judgment was only right and ought to be affirmed.
A petition for rehearing was overruled May 27, 1915.