The defendant proceeded irregularly. The order for a bill of particulars should have been, that a bill be furnished by the plaintiff, at a certain day ; or that he then shew cause why he had not furnished it. No good cause being shewn, thp order .would have become absolute, and the defendant might have moved for a non-pros, on a default to, deliver the bill upon the absolute order.
Motion denied, (a)
In all actions in which the plaintiff declares generally, without specifying the particulars of his cause of action, a Judge, upon application, will order him to give the defendant the particulars ip writing, and that all propeedings be -stayed in the mean time, as in actions for work and labour, goods sold and delivered, and the like; and in debt on bond, conditioned! for the performance of covenants, or to indemnify, the order may be for a particular of the breaches. (Tidd, 534.) So in an action by vendee against . vendor, where it was stated in the declaration, that the abstract of title delivered, was “ insufficient, defective and objectionable,” the Court obliged the plaintiff to give a particular of all objections to the abstract arising upon matters of fact. (3 B. & P. 246.) So in an action by vendee, to repo ver back his deposit, because the conditions of sale had not been complied with, the defendant may have a particular of the grounds on which the plaintiff seeks to recover. ' (1 Campb. 293.) In ejectment, the defendant may, if he doubts as to the lands, have a particular of the premises ; (7 T. R. 332, n.) or, if the ejectment is for a forfeiture, he may have a particular of the covenants and breaches on which the plaintiff means to go for a forfeiture. (6 T. R. 597.)
The plaintiff, may compel jhe defendant to give a particular of his set off; and if not delivered by the time allowed in the order, he cannot give evidence of his set off on the trial. (2 Archbold, 197. 3 John. 248.) But. where the order was to deliver forthwith, and the bill was not delivered, till ten days after the service of the order ; held, that the plaintiff could not wait till the trial, and then object that the delivery was not forthwith, as required, but should have objected before. (1 Holt’s Rep. 552.)
*573•The form of the .order with us seems to be this:
Order inbehalf of the defendant. “ Let the plaintiff’s attorney deliver ip the defendant’s attorney, an account, in writing, of the particulars of the plaintiff’s demand, for which this action is brought, by the-day of ■v—-at-o’clock,-or shew cause at that time, at my chambers at -why he should not deliver such account; and in the mean time, let all further proceedings in this cause be stayed.”
Let this be served ; on affidavit of which, and that the bill is not yet delivered, the Judge will, if no good cause be shown, order thus :
“ Let the plaintiff’s attorney deliver to the defendant’s attorney, an account, in writing, of the particulars of the plaintiff’s demand, for which this action is brought; and, in the mean time, let all further proceedings in this cause be stayed.’" (Vid. Dunl. Pract. 403. 2 Archbold, 198.)
Order in behalf of the plaintiff . “ Let the .defendant’s attorney deliver to the plan tiff’s attorney, an account, in writing, of the particulars of the defendant’s demand, which he has given notice that he will set off in this cause, by the --day of-at-o’clock, -or show cause at that time, at my chambers, at--, why he should not deliver such account, or, in default of doing so, why he should not be precluded from giving evidence at the trial in support of his said notice of set off; and in the mean time, let all further proceedings in this cause be stayed.”
On proof of service, and that no bill is delivered at the day, the order is thus:
“ Let the defendant’s attorney deliver to the plaintiff’s attorney, an account, in writing, of the particulars of the defendant’s demand, which he has given notice that he will set off in this cause, within 20 days ; or, in default thereof, ordered, that the defendant be precluded from giving evidence at the trial in support of his said notice of set off.” (Vid. 3 John. 248. Dunl. Pract. 404. 2 Arcbold, 198. 1 Hoit’s, N. P. Rep. 552.)
In ejectment, the order is, that &c. “do deliver to the defendant’s attorney, the particulars of the premises, for which this ejectment is brought,” p,c.
Further as to these forms, see Tidd's Forms, 168, s. 3, 4; the like in, ejectment, id. 691, s. 42 ; id. adapted to this slate, by Mr. Caines, 151, s. 3, 4. 475, s. 42. ' "
The form of a particular in ejectment is thus: “ I do hereby give you notice, that this ejectment is brought for the recovery of-messuages, &c. with the appurtenances, situate in the town of, &c. in' the county of, &c. Dated, &c. Yours, &c. --att’y fop pl’ff.” (Id. 476, s. 43.) Tidd and Caines go upon the English form by summops and order.
Sow obtained. This must be on affidavit, shewing the necessity of it •, (19 John. 268.) By the defendant, it is usually obtained before plea pleaded; although it is discretionary with the Judge, to make an older at any time before the trial, whether the application be made by the plaintiff or defendant (2 Archbold, 198.) It was decided in 1 B. & P. 378, that a defendant cannot demand a bill till after appearance, but it Was lately decided otherwise in the K. B. (1 Chit. Rep. 725.) He cannot make the demand before declaration. (1 Chit. Rep. 725, n.)
*574The party thus ordered to give a bill of particulars, shóuld make it out forthwith, and deliver it to the opposite attorney. (2 Archbold, 198. See the form, Tidd’s Forms, 169, s. 4, a. 170, s. 4, d.) If money have been paid on account, the bill of particulars should specify it, and state the balance for which the plaintiff seeks to recover, (1 Esp. Rep. 280. See 2 id. 602.) It is decided in 2 Campb. Rep 440, that stating the debtor side of the account, only, would be considered a contempt, for which the attorney would probably be ordered to pay the costs of both parties ; but in this state, it is not neces, sary to set forth credits or payments made by the opposite party. (15 John. 222.) Delivering a particular as general as a declaration, would probably be a contempt of the order, and subject the attorney to costs. (See 1 Taunt. 353.) There is no objection, however, when an account has already been delivered, to refer to it generally in the bill of particulars, without re-stating the items of it. (Peake’s Cas. 172.) If the bill of particulars be incorrect, tire party who delivered it may have leave to amend it; or, if not sufficiently explicit, the other party may take out a summons, and obtain an order for further particulars. (Tidd, 528. See 1 Campb. 69, n. 2 Taunt. 224. 4 id. 189. 1 Slarkie, 224.) And this is the only proper mode of correcting the insufficiency ; for the party cannot wait till the trial, and then object. (Holt’s N. P. Rep 552.) The English practice gives the defendant the same time "to plead, after the delivery of the bill of particulars, as he had when the summons for it was attendable,. (13 East, 508. See 2 B. & P. 363. 5 id. 361.) In this state, he has the same time after the delivery, as he had when the order was granted. (1 Dunl.Pr. 405.)
At the trial, the particulars of the plaintiff’s demand, or of the defendant’s set off, if delivered, are considered as incorporated with the declaration, plea or notice, (14 John. 329 ; 15 id. 222 ;) and on production of the order, and proof of their delivery, the parties are not allowed to give any evidence out of them. (1 Camp. 69. Peake’s Cas. 172. 3 Esp. Rep. 168. 2 B.& P. 243.) Thus, where the bill 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 nf goods sold bp the defendant, as agent for the plaintiff (2 B. & P. 243. 3 Esp. Rep. 168.) So where the plaintiff’s particular stated various sums of money due by the defen- ' dant, but some of which were, in fact, owing from tire 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 evi-. dence of those due from the defendant, solely, Because they were not distinguished from the others in the bill of particulars. (1 Esp. Rep. 452. 2 Sellon, 339.) As the object, however, of this strictness, is, that the opposite party may know what will be attempted to be proved against him at the trial, and may prepare his evidence accordingly, a mistake in the particular, not calculated to deceive or mjslead him, will not be deemed material. Thus, an error in the date of one of the items, was holden to be immaterial, because it could not have misled the defendant. (2 Taunt, 224.) So where a payment, made on account of the defendant, to A, was stated, in the particular, to have been made to B, Ld, EUenborough said *575he should hold it to be immaterial, unless the defendant would make aEdavit that he was misled by the particular. (1 Campb 69, n) So where, in debt for rent, the plaintiff, in his particular, described the premises as being in a different parish from that in which they were really situate, the Court held the mistake to be immaterial, as the defendant could not have been misled by it. (3 M. & S 380.) Although the plaintiff is confined, in his proof, to the items contained in his bill, yet if it appear, from the defendant’s evidence, that he is entitled to recover for items not included in the hill, he shall recover for such items. (1 Campb 68 See 3 Taunt. 285. 2 B. & P.243.) But an admission, in the defendant’s particular, of" set off, cannot he used by the plaintiff, as evidence in support of his claim— he must produce other evidence of it. (5 Taunt. 228.)
An order for a bill of particulars does not stay proceedings till served on. the opposite party. (1 Chit. Rep. 647.) But this order, when properly served on the plaintiff, was holden to stay proceedings, so as to prevent his signing judgment, although the action was brought for an assault, and no particulars can properly be demanded in that form of action. (Id, 725.)