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prehensions of danger from proceeding shall appear to be reasonable, security may be required, to indemnify them from the consequences of their proceeding to act; and if they shall refuse to act, upon being so indemnified, they must do it at their peril; and so also if they refuse to act, without giving notice of such reasonable apprehension of danger to the injury of the creditor."

CHAPTER XVII.

BILL OF PARTICULARS.

In all actions of assumpsit for goods sold, &c., the plaintiff is required to file a bill of particulars, at the time of entering his action, on penalty of being allowed no costs until it is filed, unless the Court, for good cause, shall grant an extension of the time. In all other actions, a bill of particulars may be ordered by the Court, on motion, when it appears necessary. The rules of both Courts upon this subject are substantially the same. See Appendix.

The practice of requiring such particulars is comparatively of modern date, and probably attributable to the adoption of general indebitatus and quantum meruit counts, which are also comparatively of modern date, and not to be found in the ancient entries; as we find that declarations for even the most ordinary services and works were formerly special. Osborne v. Rodgers, 1 Saund. 264. It is observable that common counts, as for goods sold, or for work and materials found, may and frequently do embrace numerous transactions that took place at different times and upon different contracts, wholly independent of each other, and of which the form of the declaration affords the defendant, in fact, no information. It has, therefore, since the introduction of those counts, and principally to prevent inconvenience and surprise from them, been the practice for the Judge, on motion of the defendant, if it be made in a reasonable time before trial, to order

the plaintiff to file a bill of particulars. 3 Chitty, Gen. Prac. 612.

A bill of particulars should give as much information as a special declaration; and as an insufficient declaration is a proper ground of nonsuit, so is an insufficient bill of particulars. Babcock v. Thompson, 3 Pick. 446. As the Courts have no power to compel a party to be nonsuit, it is more correct to say, that in such case they will order the action to be dismissed. If a party neglect to file specifications of defence, according to an order of the Court, or according to the general rule, the Court cannot order him to be defaulted. The only effect of his non-compliance with the rule or order is, that he will be confined to such matters as may strictly be given in evidence under the general issue. It is otherwise in case of neglect to file a bill of particulars, for the reason, that it is as impossible to proceed to a trial without a bill, as without a declaration. If the bill is insufficient, the defendant should move that it be suppressed, or for further particulars; he cannot lie by, until the trial, and then object to them for vagueness or generality. Robinson v. Wadsworth, 8 Met. 67.

The date of the items should be given in the bill, with as much accuracy as possible. Where there has been an account current, and payments have been made, for which the party means to give credit, it has been held, (Mitchell v. Wright, 1 Esp. 280,) that the bill should contain the items both of debt and credit; but Chitty says, (3 Gen. Prac. 617,) that this principle, if tenable, is not observed in practice, and it probably only means, that where a plaintiff sues for a balance due, he should furnish particulars both of debt and credit.

After the bill of particulars is furnished, the plaintiff

cannot, upon trial of the action, contradict it, or give evidence of any demand not contained in it, unless specially declared upon in some count of the declaration. The bill, in fact, becomes a part of the declaration; as, where the bill of particulars stated the plaintiff's demand to be for goods sold and delivered to the defendant, the plaintiff was not allowed at the trial,to give evidence of goods sold by the defendant, as agent for the plaintiff, (Holland v. Hopkins, 2 Bos. & Pul. R. 243); so, where the particular was of a promissory note only, and when the note was produced at the trial, it was found to be written on an improper stamp, the Court held that the plaintiff was precluded from resorting to his money counts. Wade v. Beasley, 4 Esp. R. 7. But under such particular, after proving the due execution of the note, the plaintiff may recover interest upon it. Blake v. Lawrence, Ib. 147.

Where the plaintiff's particular stated various sums of money due by the defendant, but some of which were in fact owing from the defendant and his partner, and not from the defendant alone, and the defendant pleaded the non-joinder in abatement, the plaintiff was not allowed to give evidence of those due from the defendant solely, because they were not distinguished from others, in the bill of particulars. Colson et al. v. Jelby, 1 Esp. R. 452.

But where one of the several joint debtors is sued alone, he must plead the non-joinder in abatement, and cannot take advantage of it upon trial; and if he plead in bar, the bill of particulars may run against him alone, without mentioning his co-debtors. Gay v. Gay, 9 Cow. R. 44.

The object of this strictness is, to prevent the opposite party from being deceived or misled, as to the

demands which the plaintiff may attempt to prove against him, at the trial, and that the defendant may be prepared to meet the subject matters of the action against him. A mistake, therefore, not calculated to deceive or mislead him, will not be deemed material. Milwood v. Walter, 2 Taunt. R. 224. Thus in the case last cited, where a mistake was made in the date of one of the items; so, where a payment was made on account of the defendant to A., which was stated in the particular to have been made to B., Lord Ellenborough said he should hold it to be immaterial, unless the defendant would make affidavit that he was misled by the particular. Day et al. v. Bower, 1 Camp. R. 69, note. In like manner, where in debt for rent, the plaintiff in his particular, described the premises as being in a different parish from that in which they really were, the Court held the mistake to be immaterial, as the defendant could not have been misled by it. Davies v. Edwards, 3 Maule & Sel. R. 380. So a variance between the amount of rent demanded, in the bill of particulars, and that proved to be due, was holden not to be material. Tenny d. Gibbs et al. v. Moody, 3 Bing. R. 3.

But it is otherwise where the variance is material. or calculated to mislead; thus it was holden, that evidence could not be given of work done in one year, where the date in the bill was the first of April in the next year. 2 Paine & Duer, Prac. 154.

Although the plaintiff is confined in his proof, to the items contained in his bill of particulars, yet if it appear from the defendant's own showing, that the plaintiff is entitled to recover for items not included in the bill, he shall recover for such items. Hurst v. Watkins, 1 Camp. R. 68; Williams v. Allen, 7 Cow.

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