in the declaration; and therefore, in such actions, it is not usual to make an order for the particulars: but circumstances may occur which render it necessary. And in an action against the marshal for an escape, he is entitled to a particular of the cause of action, for which the plaintiff sues. (f)[1] Under a judge's order for particulars, the plaintiff, or his attorney or agent, should deliver a particular account in writing of the items of the demand, and when and in what manner it arose :[A] And where there has been an account current, and payments have been made for which the [*598] party means to give credit, the particular ought to contain as well those *matters for which he means to give credit, as those for which the action is brought. (a) But it is sufficient to refer in a bill of

(f) 7 Dowl. & Ryl. 774.

(a) 1 Esp. Rep. 280. 2 Campb. 410. In the latter case, an attorney having delivered & particular, containing only the debtor side of the account, was made to take a verdict for

[1] In order to obtain particulars in an action of trespass, trover, or on the case, it seems to be necessary to produce an affidavit, denying the defendant's knowledge of what the plaintiff is proceeding for. Snelling v. Chennels, 5 Dowl. Rep. 80. 12 Leg. Obs. 75, S. C. And the court will not compel a plaintiff, suing for the breach of an agreement, and assigning by way of special damage, that he has incurred certain expenses, to furnish particulars of such special damage. Retallick v. Hawkes, 1 Meeson & W. 573. So, in an action on the case against an attorney for negligence, in assigning leasehold property belonging to the plaintiff, per quod the plaintiff had to pay damages to the assignee, the court refused to compel the delivery of a particular of the plaintiff's demand. Stannard v. Ullithorne, 3 Bing. N. R. 326. 5 Dowl. Rep. 370, S. C.

At the trial, an erroneous date in a bill of particulars, or a mistake therein, which is not calculated to mislead the defendant, will not preclude the plaintiff from recovering his demand. Millwood v. Walter, 2 Taunt. 224; and see Harrison v. Wood, 8 Bing. 371. Lambirth v. Roff, 1 Moore & S. 597. 8 Bing. 411, S. C. Bagster v. Robinson, 2 Moore & S. 160. 9 Bing. 77, S. C. Spencer v. Bates, 1 Gale, 108. Fisher v. Wainwright, 1 Meeson & W. 480. 1 Tyr. & G. 606. 5 Dowl. Rep. 102. 12 Leg. Obs. 99, 100, S. C. And a printer, who had let out men, presses, and type, for the printing of a newspaper, was allowed to recover, in an action for work and labour, although his particular described the demand to be "for composing and printing a certain newspaper," &c.; the defendants not having, at the trial, availed themselves of the variance between the particular and the evidence. Bagster v. Robinson, 2 Moore & S. 160. 9 Bing. 77, S. C. So, though the particulars of the demand vary from the evidence which the plaintiff adduces, yet, if the defendant appears and defends, and is not misled by them, the variance is no ground for nonsuiting the plaintiff. Green v. Clark, 2 Dowl. Rep. 18. 6 Leg. Obs. 362, S. C. Spencer v. Bates, 1 Gale, 108. But where the plaintiff's bill of particulars stated the cause of action to be for the amount of stakes deposited in the defendant's hands, by the plaintiff and R., and won by the plaintiff of R., the court held that he could not recover the amount of his own stake, on proof that he had re-demanded it from the defendant, before it was paid over. Davenport v. Davies, 1 Meeson & W. 570.

A copy of the particulars of the plaintiff's demand, and also a copy of the particulars, if any, of the defendant's set-off, Append. to Tidd, Sup. 1832, p. 113, should by a general rule of all the courts, R. T. 1 W. IV. reg. II; 2 Barn. & Ad. 788, 9; 7 Bing. 783; 1 Cromp. & J. 470, 71; 4 Car. & P. 603, be annexed by the plaintiff's attorney to every record, at the time it is entered with the judge's marshal. And when the bill of particulars of the plaintiff's demand is appended to the record, it is not necessary to prove the delivery of it to the defendant. Macarthy v. Smith, 8 Bing. 145. 1 Moore & S. 227. 1 Dowl. Rep. 253, S. C. Particulars of demand having been delivered to the defendant's attorney, under a judge's order, another bill of particulars was afterwards annexed to the record by the plaintiff's attorney, pursuant to the above rule, as and for a copy of the particulars of the demand, but in fact containing items not stated in the particulars delivered to the defendant; the plaintiff's evidence at the trial was confined to the items exclusively set forth in the particular annexed to the record; the defendant not being prepared to prove the delivery of the particulars to his attorney, under the judge's order, did not apply for a nonsuit; and the court, under the circumstances, granted a new trial without costs, but refused to enter a nonsuit. Morgan v. Harris, 2 Tyr. Rep. 385. 2 Cromp. & J. 461. 1 Dowl. Rep. 570, S. C.

[A] Time is material. Quin v. Astor, 2 Wend. R. 577.

particulars, to an account already delivered, without restating it :(6) and în general, if the plaintiff's particular convey the requisite information to the defendant, however inaccurately it be drawn up, it is sufficient.(c) And if a bill of particulars state the transaction upon which the plaintiff's claim arises, it need not specify the technical description of the right which results to the plaintiff out of that transaction. (d) After the delivery of a bill of particulars, the defendant, in the King's Bench, has the same time to plead, as he had when the summons for it was returnable.(e) And in the Common Pleas, we have seen,(f) the plaintiff cannot sign judgment for want of a plea till the expiration of twenty-four hours after the delivery of a bill of particulars, though the time for pleading be expired, and a demand of plea given, more than twenty-four hours before that time. In the Exchequer, the defendant cannot obtain an order for the particulars of the plaintiff's demand, without an affidavit, (g) that he is unacquainted with them: but he is entitled to receive such particulars from the plaintiff, although he may have had a statement of them before the action was brought.(h) And where a plaintiff refused to deliver a particular of his demand, in obedience to a judge's order, the court of King's Bench refused to allow the defendant to sign a judgment of non pros.(i)

As the defendant is allowed to call for the particulars of the plaintiff's demand, so when the defendant pleads or gives notice of set off, for goods sold, &c. the plaintiff may take out a summons for the particulars; upon which the judge will make an order, which should be regularly drawn up and served,(k) for the defendant to deliver them in a certain time, or in default thereof, that he be precluded from giving evidence at the trial, in support of his set-off. (1) But the plaintiff cannot make any objection to such particulars, at the trial of the cause, which, if made earlier, the defendant or the court might have rectified.(m)

If the particulars delivered under a judge's order be not sufficiently explicit, the party to whom they are delivered may take out a summons, and obtain an order, for further particulars; and if, on the other hand, *they are incorrect, or not sufficiently comprehensive, the party [*599 delivering may have a summons and order to amend them. But it is a rule in the King's Bench, (a) that "no summons for further particulars of the plaintiff's demand, defendant's set off, or other particular, be granted in an action depending in this court, unless the last previous order for particulars be first drawn up, and such order produced at the time of applying for any such summons. And in the Common Pleas, where the declaration was delivered at the same time as a bill of particulars which was insufficient, and another order was afterwards obtained for better particu

the balance due to him, without costs. Sed quære, as to the necessity of including payments by the defendant, in the particulars of the plaintiff's demand; the practice not being conformable to the cases?

(b) Peake's Cas. Ni. Pri. 3 Ed. 229.

(c) 1 Campb. 69, in notis.

(d) 4 Taunt. 189; and see Peake's Cas. Ni. Pri. 3 Ed. 229, (a).

(e) 13 East, 508; and see 5 Barn. & Cres. 769; but see 4 Barn. & Cres. 970. 7 Dowl. & Ryl. 458, S. C. 5 Barn. & Cres. 770, (b). (f) Ante, 469. (h) Wightw. 78. (k) R. H. 59 Geo. III. K. B. Ante, 471. (1) For the form of particulars of set-off, effect of such particulars, see 8 Price, 213. ing rules in vacation, in the courts of Great tiff's demand, and defendant's set-off, &c. (m) Holt, Ni. Pri. 552.

(g) Append. Chap. XXIII. § 5. (i) 7 Dowl. & Ryl. 125. 7 Barn. & Cres. 485.

see Append. Chap. XXIII. & 10.
See also stat. 5 Geo. IV. c. 106,
Sessions in Wales, for a particular
Ante, 486, 7, (u).

And for the 8, for grantof the plain

(a) R. H. 59 Geo. III. K. B. Ante, 471.

lars, the court held, that as the defendant's attorney had not returned the declaration, with the insufficient particulars, he had waived the irregularity.(b) An amendment was allowed, in the latter court, after the plaintiff had been nonsuited for a defect in the bill of particulars, and a new trial granted on payment of costs. (c) And the plaintiff, in the Exchequer, is not entitled to be paid the costs of the first trial, previous to and as the terms of the amendment; but the court will order them to abide the event of the cause. (d) But where a particular was delivered under a judge's order, and the plaintiff delivered a second particular, without an order, containing merely an echo of the counts in the declaration, that court would not allow him to give evidence of any claim contained in the second particular, which was not included in the first. (e)

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; and on production of the order, and proof of their delivery, the parties are not allowed to give any evidence out of them.(f) Therefore, where the particular of the plaintiff's demand was a promissory note only, and on being produced it appeared to be improperly stamped, so that it could not be given in evidence, the plaintiff, though he might otherwise have gone into the consideration of the note, was held to be precluded therefrom by his particular.(g) But an erroneous date to a bill of particulars, which is not calculated to mislead the defendant, will not preclude the plaintiff from recovering his demand. (h) So, where the plaintiff declared in debt for rent, without showing in what parish the lands were situate, and delivered a particular of his demand, describing them in a wrong parish, the court held that the plaintiff might recover; it not appearing that any mis-representation was intended, or that the defendant held more than one parcel of land of the plaintiff, so as to be misled by it :(i) So, where the plaintiff declared on three bills of exchange, in three several counts, but, according to his particular, only sought to recover on the bill set forth in

the first count; and the defence was, that the defendants were not [*600] partners when the latter bill was drawn, and the plaintiff tendered in *evidence the other two bills, for the purpose of establishing the fact of partnership; which evidence was rejected, on the ground that these bills were not included in the particular; the court of Common Pleas granted a new trial. (a) So, in ejectment to recover premises forfeited for non-payment of rent, a difference between the amount of rent proved to be due, and the amount demanded in the lessor of the plaintiff's particular, is not material.(bb) And although the plaintiff, after delivering a particular of his demand, cannot at the trial himself give evidence out of it, yet if the defendant's evidence show that there were other items which he might have included in his demand, he is entitled to recover all that appears to be due to him.(cc) An item, however, of the plaintiff's demand, appearing on the face of the defendant's set off, given in under a judge's order, is not such

(b) 2 Moore, 90; and see Id. 655. 8 Taunt. 592, S. C. Ante, 514. (c) 2 Bos. & Pul. 245.

(e) 1 Taunt. 353.

(d) 8 Price, 538.

(f) Peake's Cas. Ni. Pri. 3 Ed. 229. 1 Esp. Rep. 195. 3 Esp. Rep. 168. 2 Bos. & Pul.

243, S. C. 1 Sel. Pr. 2 Ed. 329, 30.

(g) 4 Esp. Rep. 7.

(i) 3 Maule & Sel. 380.

(a) 5 Moore, 567. 2 Brod. & Bing. 682, S. C.

(bb) 10 Moore, 252. 3 Bing. 3, S. C.

(h) 2 Taunt. 224.

(cc) 1 Campb. 68.

an admission as supersedes the necessity of the plaintiff's proving it.(d) In an action of assumpsit brought by the assignees of a bankrupt, the defendant called for the particulars of the plaintiff's demand, which were given him, and then pleaded in abatement, that the promises were made by himself and another person jointly: issue being joined on this plea, it appeared in evidence at the trial, that the particulars chiefly related to transactions between the bankrupt and the defendant, jointly with the person mentioned in the plea; and though there were some items which concerned the defendant only, yet as these were not distinguished from the rest, the chief justice would not suffer them to be given in evidence, and nonsuited the plaintiff: The Court of King's Bench was afterwards moved, but refused to set aside the nonsuit.(e)

*CHAPTER XXIV.

[ *601 ]

Of CHANGING the VENUE, CONSOLIDATING ACTIONS, and STRIKING OUT COUNTS.

THE law having settled the distinction between local and transitory actions, it seems that towards the reign of Richard the second, it was greatly abused;(a) for a litigious plaintiff would frequently lay his action in a foreign county, at a great distance from where the cause of it arose, and by that means oblige the defendant to come with his witnesses into that county. To remedy which, it was ordained by statute, (b) "to the intent that writs of debt and account, and all other such actions, be from henceforth taken in their counties, and directed to the sheriffs of the counties where the contracts of the same actions did arise; that if from henceforth, in pleas upon the same writs, it shall be declared that the contract thereof was made in another county than is contained in the original writ, that then the same writ shall be utterly abated." The design of this statute was to compel the suing out of all writs arising upon contract, in the very county where the contract was made,(c) agreeably to the law of Henry the first:(d) Unusquisque per pares suos judicandus est, et ejusdem provinciæ ; peregrina vero judicia modis omnibus submovemus.(e) But as the statute only prescribes, that the count shall agree with the writ, in the place where the contract was made, it did not effectually prevent the mischief:(f) And therefore a statute of Henry the fourth(g) directs all attorneys to be sworn, that they will make no suit in a foreign county; and there is an old rule of court, (h) which makes it highly penal for attorneys to transgress this

statute.

Soon after the statute of Henry the fourth, a practice began of pleading in abatement of the writ, the impropriety of its venue, even before the

(d) 2 Esp. Rep. 602. 5 Taunt. 228. 1 Marsh. 33, S. C.

e) Colson & others, assignees, &c., v. Selby, E. 36 Geo. III. K. B. 1 Esp. Rep. 452, S. C.

(a) Gilb. C. P. 89.

(c) 2 Blac. Rep. 1032.

Gilb. C. P. 89, in notis.

(g) 4 Hen. IV. c. 18.

(b) 6 R. II. c. 2.
(d) Leg. Hen. I. c. 31.
(f) 2 Black. Rep. 1032.

(h) R. M. 1654, 5, K. B. R. M. 1654, § 8, C. P.; and see R. M. 15 Elic. & 15, C. P.

plaintiff had declared. At first, in the reign of Henry the fifth, they examined the plaintiff upon oath, as to the truth of his venue: But soon after they began to allow the defendant to traverse the venue, and try the traverse by the country.(i) This practice being subject to much delay, the judges introduced the present method of changing the venue upon motion,

on the equity of the above statute;(k) which Lord Holt says,(1) [*602] *began in the time of James the first: And accordingly we find, that among the fees of the Court of King's Bench, as found by a jury under the King's commission in 1630, one is, "for every rule to alter a visne."(aa) The form of the rule and affidavit are also stated by Styles,(bb) as established in 23 Car. I.(cc)

But whenever the practice began, it is now settled, that in transitory actions, the venue may be changed upon motion, either by the plaintiff or defendant; And, in an action against several defendants, it may it seems be changed at the instance of some of them only. (d) The plaintiff shall not directly alter his venue, after the essoin day of the next term after appearance; though he would pay costs, or give an imparlance:(e) Yet he may in effect do it, by moving to amend ;(f) and that, after the defendant has changed the venue, (g) or pleaded, (h) and even after two terms have elapsed from the delivery of the declaration.(2) An amendment was allowed in the King's Bench, in an action for a penalty under the bribery act, by altering the venue from the county at large to an interior jurisdiction, after the time limited for commencing a new action; the particularity of the declaration making it appear probable to the court, that the plaintiff was proceeding on the same fact for which the action was originally brought, when laid by mistake in the wrong county, though there was no affidavit that it was the same (kk) And in another case, such amendment was allowed though it appeared that there were distinct causes of action in the two different counties, upon an affidavit that the plaintiff proceeded on a mistake, in supposing that both causes of action could be proved in the county where the election was holden.() But, in the Common Pleas, where the defendant had put off the trial at the assizes, on the absence of a witness, the court refused to let the plaintiff amend, by changing the venue to Middlesex.(m) And that court will not amend a declaration, by changing the venue, unless the plaintiff show substantial ground for it: Therefore, where the plaintiff moved to amend, by changing the venue from Bedfordshire to Middlesex, on the ground that the action depended on a question of law, as to the construction of an inclosure act, and would therefore be tried better and more expeditiously in town; the court, on the affidavit of the defendant, that the cause

(i) Rastal, tit. Debt, 184, (b). Fitz. Abr. tit. Brief, 18.
(k) 1 Wms. Saund. 5 Ed. 73, 4, (2).
(aa) Trye's jus. fil. 231.

(1) 2 Salk. 670.

(bb) Sty. Pr. (Ed. 1707,) 631.

(cc) The case of Lord Gerrard v. Floyd, (East, 16 Car. 2,) 1 Sid. 185, is said to be the first case in the books, on the subject of changing the venue; but that case mentions the common affidavit, and common rule for changing the venue, which shows that the practice was then well known and established: and see 2 Blac. Rep. 1033.