PENPRASE v. CREASE, H. T. 1836. Ex. 4 D. P. C. 711; S. C. 1 M. & W. 36; S. C. 1 T. & G. 468.-S. P. RANDALL v. IKEY, H. T. 1836. Ex. 4 D. P. C. 682.

In an action by an agent against his principal for services— The Court would not compel the latter to give particulars of credits for monies received for him; he is only entitled to ask for what balance the action is brought.

II. RELATIVE TO THE AFFIDAVIT AND RULE FOR †.

And the Courtl

will not com pe a party to give

the credits*.

III. RELATIVE TO THE FORM OF, AND OF THE RULES
OF COURT.

Moss v. SMITH, E. T. 1840. C. P. 8 D. P. C. 537; S. C.
1 Scott, N. S. 25.

THE declaration contained two distinct breaches, one for not returning, and the other for not taking proper care of goods; the particulars claiming damages only for the non-return.

The Court held, that evidence of injury was properly rejected.

* The Court refused to compel a defendant to deliver particulars of a plea of payment. (Phipps v. Sothern, H. T. 1840, Ex., 8 D. P. C. 208). But in another case, upon a plea of payment of a sum in satisfaction of the plaintiff's demand, the defendant was ordered to furnish particulars as in case of set-off. (Ireland v. Thompson, T. T. 1838, C. P., 6 Scott, 601; S. C. 4 Bing. N. S. 716).

† Where the attorney had, without authority, altered the jurat of the affidavit on which a Judge's order for better particulars had been obtained, the Court set aside the order. (Finnerly v. Smith, T. T. 1834, C. P., Bing. N. S. 649).

By Rule H. T. 2 Will. 4, a summons for particulars and order thereon may be obtained by a defendant before appearance, and may be made, if a Judge think fit, without the production of any affidavit.

The Court will not grant a rule to enforce a Judge's order for not delivering a bill of particulars of plaintiff's demand, (Cane v. Spinks, M. T. 1838, Ex., 7 D. P. C. 27); nor can the defendant sign judgment of non pros. (Vide ante, p. 27).

In an action for work and labour, &c., the particulars stated the action to be brought to recover 771. 4s. 11d.; "the full particulars exceed three folios and have been already delivered." The former particulars were delivered before action brought, and claimed 777., the balance of 1237., and acknowledged receipts by cash for 467.-Held, that this admission was not within the Rule of T. T. 1 Vict., and that payment of the 467. should have been pleaded. (Bosley v. Moore, E. T. 1840, Ex., 8 D. P. C. 375). Particulars of demand stated the action to be brought to recover the deposit paid upon the sale of an estate, to which the defendant was unable to make a good title. A summons was taken out for better particulars, which was dismissed upon the plaintiff's attorney stating that the objections were matters of law only. Subsequently a notice was delivered to the defendant's attorney that the objections were set forth in the plaintiff's answer to defendant's bill in Chancery. At the trial it appeared that the only objection was matter of fact. The Court refused a new trial, the defendant's attorney declining to make affidavit that he had been misled. (Correll v. Cattle, E. T. 1837, Ex., 5 D. P. C. 598).

A., a broker, introduced a merchant and a ship-owner together to treat for a charter-party through B., another broker. In an action by A. for his commission, the particulars of demand were for commission due to the plaintiff for procuring a charter-party for a vessel called the W., &c. :-Held sufficient. (Burnett v. Bouch, T. T. 1840, N. P., 9 C. & P. 620).

Before Rule T. T. 1 Vict., (see post, tit. Payment), all that was necessary, under Rule Trin. T. 1 Will. 4, was, that the particular should state the balance

If the particulars omit part

of the cause of action evidence cannot be given of itt.

A variance be

tween particulars a ground for a new trial.

But a variance which cannot mislead‡,

or surprise, is not material.

IV. RELATIVE TO THE CONSTRUCTION OF*.

V. RELATIVE TO WHERE TWO PARTICULARS ARE
DELIVERED†.

VI. RELATIVE TO THE CONSEQUENCES OF MISTAKES
IN, AND WANT OF PROOF OF.

MORGAN V. HARRIS, E. T.

1832. Ex. 2 C. & J. 461; S. C. 1 D. P. C. 570.

THE particulars annexed to the record varied from those delivered under an order, but which the plaintiff was not in a condition to prove.

The Court refused to nonsuit, but granted a new trial without costs.

HARRISON v. WOOD, H. T. 1832. C. P. 8 Bing. 372; S. C. 1 M. & Scott, 536.-S. P. FLEMING v. CRISP, H. T. 1837. Ex. 5 D. P. C. 454.

In this case, the Court held, that a variance in the particulars, which cannot mislead, is not material.

LAMBRITH V. ROFF, E. T. 1832. C. P. 8 Bing. 411; S. C. 1 M. & Scott, 597.

THE particulars stated the goods to have been delivered to the defendant by the plaintiffs, in their trade of brewers, the goods being spirits; but the defendant, in fact, dealing with one of the plaintiffs and another as brewers.

claimed to be due; and it not specifying sums received on account, although the plaintiff had not complied with the rule, and the cause was referred, the Court refused to interfere as to the costs occasioned by breach of the rule. (Smith v. Elridge, M. T. 1835, K. B., 5 N. & M. 408; S. C. 4 Ad. & E. 64).

*If to a declaration in the ordinary form in indebitatus assumpsit, with particulars containing various causes of action, the defendant pleads payment into Court, he is not precluded by his plea from contesting his liability in respect of any items beyond the amount paid into Court, as the particulars are not to be considered as part of the declaration. (Booth v. Howard, H. T. 1836, B. C., 5 D. P. C. 438).

Where the declaration indorsed to plead in four days was delivered with particulars annexed, which two days after were discovered to have been wrongly intitled, and a fresh one was given :-Held, that the acceptance of the latter was a waiver of the objection, and the plaintiff entitled to sign judgment for want of plea. (Jones v. Fowler, T. T. 1835, Ex., 4 D. P. C. 232). Where a summons for better particulars had been taken out by one party before a Judge, and as yet not disposed of, the Court refused to entertain an application by the other party to hold the particulars already delivered sufficient. (Abbott v. Hopper, M. T. 1839, C. P., 8 D. P. C. 19).

Upon a declaration by assignees for money had and received to the bankrupt's use, and an account stated with plaintiffs :—Held, that a variance in the particulars, stating it as received to the use of the plaintiffs, was immaterial, when it did not appear the defendants could be misled by it. (Tucker v. Barow, M. T., 1827, N. P., 1 M. & M. 137). But where the particular delivered was calculated to mislead the defendant as to the real nature of the demand, and to which he might have pleaded specially, the Court granted a new trial, with liberty to the plaintiff to amend the particulars, and the defendant to plead de novo. (Stevens v. Willingale, M. T. 1836, N. P., 7 C. & P. 702; 4 Scott, 255).

The Court held, that the defendant having neither been surprised nor misled, the variance was not material.

though not applicable to a special count, may be used to support an ac

FISHER v. WAINWRIGHT, T. T. 1835. Ex. 1 M. & W. 480. THE first count was on a special promise, that, if the plaintiff A particular, would take up a bill of exchange and sue the acceptor, the defendant would pay the costs incurred by the plaintiff. The second count was on the bill itself; and then an account stated. The plaintiff gave a bill of particulars under a Judge's order, claiming the balance of the bill of exchange and interest. To another order, requiring a bill of the costs and expenses mentioned in the first count, the plaintiff delivered a simple bill of costs; and added the amount of the bill and interest.

The Court held, that the plaintiff, not being entitled to recover the whole of his bill of costs under the first count, was not prevented by his particulars from recovering on the account stated.

MORGAN v. HARRIS, E. T. 1831. Ex. 2 Tyrw. 385. THE plaintiff delivered a particular under a Judge's order, and afterwards annexed another to the record, containing items to which, at the trial, the evidence alone applied, but the defendant, not being in a situation to prove the delivery of the first, did not apply for a nonsuit.

The Court refused to enter it, but granted a new trial.

count stated.

If no applica

tion to nonsuit, a new trial will

be granted, on the ground that the particulars proved*.

were not

VII. RELATIVE TO THE EFFECT OF.

HADLEY V. GREEN, H. T. 1831. Ex. 2 Tyrw. 390. THE plaintiff having demands against the defendant for rent, and also the value of stone taken from the premises, brought an action for use and occupation, with the common counts, and delivered particulars for the value of the premises and of the materials taken. A verdict was found generally, but no evidence was offered as to the latter demand. In another action, brought for the same demand-

The Court held, that the second action was maintainable.

KENYON v. WAKES, M. T. 1837. Ex. 6 D. P. C. 105; S. C.

2 M. & W. 764.

A demand being mentioned in a particular clude a second action.

does not pre

THE plaintiff declared for wages, and put in a particular for The particulars wages at 158. per week, amounting to 1487., and gave credit for may be used payment of 701.; and the defendant, at the trial, put the particulars as an admis

Where the plaintiff failed in proving a delivery of goods within the time mentioned in the particular, but only of a date prior thereto, and the defendant called a witness to disprove the plaintiff's case:-Held, that as the defendant was not misled, the defect of the particulars was not a ground of nonsuit. (Green v. Clark, E. T. 1833, Ex., 2 D. P. C. 18). It is not necessary to prove the particulars annexed to the record pursuant to the late Rule. (Macarthy v. Smith, M. T. 1829, C. P., 6 Bing. 145; S. C. 1 M. & Scott, 227).

sion of payment*.

in evidence, and the jury found that the plaintiff was only entitled to 78. a week.

The Court held, that the particulars were properly received as an admission of the payment; and the Court refused to disturb the verdict found for the defendant.

VIII. RELATIVE TO THE NON-DELIVERY OF†.

Where proceedings are suspended for several years, particulars may be amended, except as to the Statute of Limi

tations.

IX. RELATIVE TO THE AMENDMENT OF, AND PAR-
TICULARS AFTER AMENDMENT OF DECLARA-
TION.

STAPLES v. HOLDSWORTH, T. T. 1838. C. P. 6 Scott, 605; S. C. 4 Bing. N. S. 717; S. C. 6 D. P. C. 715.

A CONSIDERABLE time had elapsed between the commencement of the suit and the time appointed for trial

The Court will allow the plaintiff to amend his bill of particulars, provided such amendment does not introduce any new ground of action, which might be met by the Statute of Limitations, more especially where the original ground of action, to meet which the bill of particulars was framed, had been furnished by the defendant himself.

*And by Rule T. T. 1 Vict., such admissions are expressly made evidence. But a particular cannot be used for the purpose of explaining the pleadings in the cause. (Kilner v. Bailey, 5 M. & W. 382). It will not prevent a plaintiff from giving evidence on a special count in his declaration, that he has not included that part of his claim in his particular of demand, as a particular is only necessary to explain the common counts. (Day v. Davies, H. T. 1832, N. P., 5 C. & P. 340).

Where the plaintiff, after delivering a bill to the defendant as the attorney of A., by which A. was made debtor, afterwards obtained possession of the bill surreptitiously, and delivered another, making the defendant debtor, the Court stayed the proceedings until a copy of the first bill should be delivered, and directed it to be evidence. (Edgington v. Nixon, T. T. 1835, C. P., 2 Bing. N. S. 316; S. C. 2 Scott, 507). Rule obtained for particulars operates as a stay of proceedings until delivered; (Somers v. King, H.T. 1825, K. B., 7 D. & R. 125); and after an order for particulars, and before delivery, a demand of declaration, with notice at the foot of the order being abandoned, held irregular, and judgment of non pros. set aside. (Wickens v. Cox, T. T. 1838, Ex., 6 D. P. C. 693; S. C. 4 M. & W. 67).

The fact of a plaintiff withholding the particulars of his demand, in disobedience to a Judge's order, is not a ground for discharging a defendant out of custody; (Graff v. Willis, T. T. 1837, B. C., 5 D. P. C. 715); and where the defendant, after service of the writ of summons, obtained before declaration an order for particulars, and the plaintiff omitted to take any step for three months,, the Court refused to compel him to enter a stet processus. (Kirby v. Snowdon, T. T. 1835, Ex., 4 D. P. C. 191). The non-delivery of particulars with declaration does not preclude plaintiff from signing judgment for want of a plea. (Jones v. Fowler, T. T. 1833, Ex., 4 D. P. C. 232; see ante, 85, n.).

Where a plaintiff's attorney accidentally gives credit in his particulars for a sum of money, which the defendant sets up as a cross demand, the Court will allow the particulars to be amended on terms. (Preston v. Whitehart, T. T. 1837, B. C., 5 D. P. C. 720). A declaration in debt, for goods sold, work and labour, and on an account stated, alleged a debt of 1007. in each count. The particulars

Particulars of Residence*.

Parties to Actions.

See particular titles according to the subject-matter and form of action.

VALLANCE v. SAVAGE, E. T. 1831. C. P. 7 Bing. 595.

In an action brought by a trustee against a party for an injury to the reversion

The Court held, that, having the legal estate, the action was properly brought in his name, although the cestui que trust appeared to have demised the premises and received the rent.

Partition. See tits. Parceners--Tenants, Joint-Tenants in

Common.

were for 1687. for goods sold. Application being made to the Judge before the cause was called on, at the trial he ordered each count to be amended by inserting 2001. instead of 1001. (Dew v. Katz, M. T. 1837, N. P., 8 C. & P. 315).

By 2 Will. 4, c. 39, it is enacted, "That every attorney whose name shall be indorsed on any writ, issued by authority of this act, shall, on demand in writing made by or on behalf of any defendant, declare forthwith whether such writ has been issued by him, or with his authority or privity; and if he shall answer in the affirmative, then he shall also, in case the Court, or any Judge of the same or of any other Court, shall so order and direct, declare in writing within a time to be allowed by such Court or Judge, the profession, occupation or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the Court from which such writ shall have appeared to have been issued; and if such attorney shall declare that the writ was not issued by him, or with his authority or privity, the said Court, or any Judge of either of the said Courts, shall and may, if it shall appear reasonable so to do, make an order for the immediate discharge of any defendant or defendants who may have been arrested on any such writ, on entering a common appearance."

A plaintiff, being called upon for his place of residence, gave Peele's Coffeehouse, Fleet-street:-Held, not sufficient, and proceedings were stayed till he gave a better place of residence. (Hodgson v. Gamble, M. T. 1834, Ex., 3 D. P. C. 174). And an attorney, who gives a false residence of his client, without using proper means to ascertain whether it is correct or not, subjects himself to the costs which may be occasioned by moving for an attachment against him; but he is not liable to pay the costs of the action if he is bonâ fide unable, after proper inquiry, to give his client's residence. (Neal v. Holden, H. T. 1835, Ex., 3 D. P. C. 493).

Where the contract was originally entered into by A., for himself and partner, under the name of "H. & Sons :"-Held, that it was not necessary to join parties who were, by a subsequent agreement, to have a share in the contract. (Hovill v. Stephenson, M. T. 1830, N. P., 4 C. & P. 469). Two of the electors of a borough went to a banker there, and said they wished to draw cheques upon the bank. The banker promised to honour any cheques they might draw. The cheques drawn were signed by one only, but the account in the banker's books was opened in the joint names:-Held, that they might maintain a joint action against the candidate in whose interest they were, if he adopted the payments made. (Bremridge v. Campbell, M. T. 1831, N. P., 5 C. & P. 186).