pearance. the particulars in writing of the plaintiff's demand, for which the action is brought, and why all proceedings should not in the mean May be obtain time be stayed. This summons might formerly have been taken ed before apout, and an order obtained thereon, in the King's Bench, before the defendant had appeared; and there was a rule in the Common Please, by which the practice in this respect was made conformable to that of the court of King's Bench: In the Exchequer, however, the defendant could not have an order for particulars of the plaintiff's demand, except by consent, unless he made an affidavit, that he had never had the particulars, or that he had mislaid them, or that he was not sufficiently acquainted with the particulars, and that therefore he was advised he could not safely proceed to trial without them: But, by a general rule of all the courts, “a summons for particulars, and order thereon, may be obtained by a defendant before appearance; and may be made, if the judge think fit, without the production of any affidavit." When required to be delivered with declaration, or notice there of. By a general rule of all the courts, it is ordered, that "with every declaration, if delivered, or with the notice of declaration, if filed, containing counts in indebitatus assumpsit, or debt on simple contract, the plaintiff shall deliver full particulars of his demand under those counts, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios: And, to secure the delivery of particulars in all such cases, it is further ordered, that if any declaration or notice shall be delivered without such particulars, or such statement as aforesaid, and a judge shall afterwards order a delivery of particulars, the plaintiff shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the parDecisions there- ticulars he may afterwards deliver". This rule is not, it seems, imperative on the plaintiff to deliver particulars, or a statement of his demand, with the declaration, or notice thereof; though, if he omit Consequence of not delivering them. on. to deliver such particulars or statement, he will not be allowed for them in costs, if afterwards called for and delivered. And the delivery of a particular of the plaintiff's demand, under the indebitatus counts, will not prevent him from giving evidence on a special count in his declaration, if 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 a. In cases to which the rule applies, where the particulars exceed three folios, the court will order the plaintiff to deliver to the defendant full particulars of his demand, the defendant paying the costs of the particulars, and, if necessary, taking short notice of trial, even though the defendant has had full particulars of the account before action brought ". But the plaintiff is not bound to specify in his particulars, the sums received by him on account c. In order to obtain particulars in an action of In actions for trespass, trover, or on the case, it seems to be necessary to produce wrongs. an affidavit, denying the defendant's knowledge of what the plaintiff is proceeding for 2. 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 e. After the delivery of particulars under a judge's order, a defendant, we have seen, is allowed, by general rule of all the courts, the same time for pleading, which he had at the return of the summons; nevertheless, judgment shall not be signed, till the afternoon of the day after the delivery of the particulars, unless otherwise ordered by the judge. a 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 1. 2 Day v. Davies, 5 Car. & P. 340. per Tindal, Ch. J.; and see Cooper v. Amos, 2 Car. & P. 267. per Abbott, Ch. J. Fisher v. Wainwright, 1 Meeson & W. 480. 5 Dowl. Rep. 102, S. C. b James v. Child, 2 Cromp. & J. 252. 2 Tyr. Rep. 302. 1 Dowl. Rep. 310. S. C. Smith v. Eldridge, 5 Nev. & M. 408. 1 Har. & W. 527. S. C. Penprase v. Crease, 1 Meeson & W. 36. 1 Tyr. & G. 468. 4 Dowl. Rep. 711. S. C. Randall v. Ikey, 4 Dowl. Rep. 682. 12 Leg. Obs. 196. S. C.; but see Adlington v. Appleton, 2 Campb. 410. semb. contra. Snelling v. Chennels, 5 Dowl. Rep. 80. 12 Leg. Obs. 75. S. C. And a e Retallick v. Hawkes, 1 Meeson & W. 573. f Ante, 229. R. H. 2 W. IV. reg. I. § 48. 3 Barn. & Ad. 380. 8 Bing. 294, 5. 2 Cromp. & J. 181. h 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. Time for pleading, after de livery of bill of particulars. Effect of mistake in bill of particulars, at trial. Particulars of set-off. Copy of particulars of demand, or set off, to be annexed to record. 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 a. So, though the particulars of 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. 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 redemanded it from the defendant, before it was paid over. As the defendant is allowed to call for the particulars of the plaintiff's demand, so, when the defendant pleads a 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, 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 offe. And where an order was obtained for the delivery of particulars of set off within a fortnight, and they were not delivered for five weeks, but after delivery an order wa made by consent for the amendment of the declaration, this was holden to be a waiver of the irregularity, in the delivery of the particulars. But the demand of particulars of set off, delivered after a plea which was a nullity, was holden to be no waiver of the plaintiff's right to sign judgment 6. 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", should by a general rule of all the courts, be annexed by the plaintiff's attorney to every record, at the time it is entered with the judge's marshal. And when for the effect of such particulars, see Andrews v. Bond, 8 Price, 213. f Wallis v. Anderson, 1 Moody & M. 291. per Ld. Tenterden, Ch. J. Ford v. Bernard, 6 Bing. 534. 4 Moore & P. 302. S. C. Append. to Tidd Sup. 1832, p. 113. iR. T. 1 W. IV. reg. II. 2 Barn. & Ad. 788, 9. 7 Bing. 783. 1 Cromp. & J. 470, 71. 4 Car. & P. 603. 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 defendanta. 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 these circumstances, granted a new trial without costs, but refused to enter a nonsuit b. a Macarthy v. Smith, 8 Bing. 145. 1 Moore & S. 227. 1 Dowl. Rep. 253. S. C. Morgan v. Harris, 2 Tyr. Rep. 385. 2 Cromp. & J. 461. 1 Dowl. Rep. 570. S. C. CHAP. XXIV. In what cases venue may in general be what not. Of CHANGING the VENUE. THE defendant is, in general, allowed to change the venue in all transitory actions, arising in a county different from that where the changed, and in plaintiff has laid ita: and he may even change it from London to Middlesex, or vice versa c. But the venue cannot be changed in local actions; though the court or a judge, on the application of either party, may order the issue to be tried in another county: and in transitory actions, where material evidence arises in two counties, the venue may be laid in either f; and if it be laid in a third county, the courts will not change it; for the defendant, in such case, cannot make the necessary affidavit, that the cause of action arose in a particular county, and not elsewhere §. As it is necessary, however, for changing the venue, that the cause of action should be wholly confined to a single county, the courts will not in general change it in an action of debt on bond, or other specialty ", or in covenant on a lease i, or mortgage, or policy of insurance by deed', or in assumpsit on an award, or charterparty of affreightment", unless some special ground Gifford v. Lechmere, 2 Str. 857. Stoneham v. Dent, Barnes, 487. Pr. Reg. 430. S. C. Watkins v. Towers, 2 Durnf. & E. 4 Rex v. Barton, Say. Rep. 146. Bulwer's case, 7 Co. 2. (a.) Anon. 2 7 Moore, 520. Tidd Prac. 9 Ed. 603. (g.) b Id. 604. (a.) i Anon. 2 Chit. R. 419, 20. Rohrs (or Bohrs) v. Sessions, 4 Tyr. Rep. 275. 2 Dowl. Rep. 699. S. C. * Crompton v. Stewart, 2 Cromp. & J. 473. Anon. 2 Tyr. Rep. 501. S. C. 1 Smith v. Stansfield, 1 M'Clel. & Y. 212. m Whitburn v. Staines, 2 Bos. & P. 355. Stanway v. Heslop, 3 Barn. & C. 9. 4 Dowl. & R. 635. S. C. " Morrice v. Hurry, 7 Taunt. 306. 1 Moore, 54. S. C.; but see Pickard v. Featherstone, 12 Moore, 161. 4 Bing. 39. S. C. |