PART 1. BOOK IV. delivered; or if not prepared with proof of the delivery of the particulars, the defendant will be entitled to a new trial, and the plaintiff's attorney might be made to pay the costs of the former trial (0). ticulars on the Evidence. Payments specifically admitted in, need not be pleaded. Effect of Par- Effect of Particulars on the Pleadings and Evidence.] The Pleadings and particulars are not to be considered as incorporated in the declaration (p); and before the R. T. 1838, it was ruled, that an admission in a particular of demand of money received would not avail defendant in an action of debt, without a plea of payment, though it might be otherwise in an action of assumpsit (q). This point, however, was not free from doubt (r); and it is now settled otherwise by the R. T., 1 Vict., which orders, that in any case, in which the plaintiff (in order to avoid the expense of a plea of payment) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be necessary for the defendant to plead the payment of such sum or sums of money. But this rule is not to apply to causes where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums. And by the same rule it is ordered, that payment shall not, in any case, be allowed to be given in evidence, in reduction of damages, but shall be pleaded in bar. Proof con Particulars. At the trial, the party who delivered the particulars will be fined by the confined in his proof to the items therein contained. Thus, where the 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 plaintif (s). So, proof that the defendant acknowledged that he owed the plaintiff 137. 10s. will not support particulars, "To a beast sold and delivered, 137. 10s." (t). 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 recover upon the consideration for the note (u); but, under such a particular, after proving the note at the trial, the plaintiff may recover interest on it (x). Where the declaration contained three counts on three bills of exchange, but the particulars stated only that the action was brought to recover the money due on the bill in the first count, it was considered that the plaintiff could not recover on the bills mentioned in the second and third counts (y). But where the declaration contained two counts, each on a bill of exchange, and the particulars stated the action to be brought to recover the amount of the bill (0) Morgan v. Harris, 1 Dowl 570; 2 (p) Booth v. Howard, 5 Dowl. 438. (r) Kenyon v. Wakes, 2 M. & W. 764: (8) Holland v. Hopkins, 2 B. & P. 243; 3 Esp. 168, S. C. (t) Breckon v. Smith, 1 Ad. & Ell. 488. (u) Wade v. Beasley, 4 Esp. 7: Broch v. Watts, 1 Taunt. 353. (x) Blake v. Lawrence, 4 Esp. 147. (y) Duncan v. Hill, 2 B. & B. 684; but this decision, according to that of Cooper v. Amos, 2 C. & P. 267, (post, 1039), seems questionable; for, in general, if the matter in respect of which the plaintiff seeks to recover, and of which he gives evidence, be expressly stated in the declara tion, the particulars need not mention it, mentioned in the first count, with interest, and that the plaintiffs would rely on the whole or any part of the declaration for the recovery thereof, they were held sufficient to entitle the plaintiff to recover on the second count (z). It has been held, that, under a particular for goods sold and delivered, the plaintiff could not recover for money had and received, although it appeared that the goods had been delivered to the defendant as agent, for sale or return, and that he had sold them and received the value (a); this decision, however, appears questionable (b). 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 nonjoinder in abatement; the plaintiff was not allowed to give evidence of those due from the defendant solely, because they were not distinguished from the others in the bill of particulars (c). 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(d). CHAP. XV. immaterial. As the object, however, of this strictness is, that the oppo- Mistakes, not site party may know what will be attempted to be proved misleading, against him at the trial, and may prepare his evidence accordingly, a mistake in the particular, not calculated to deceive or mislead him, will not be deemed material (e). Thus, an error in the date of one of the items in a bill of particulars, as, where work and labour was stated to have been performed in another month, was holden to be immaterial, because it could not have misled the defendant (f). And, in a more recent case, where the particulars stated goods to have been delivered on the 6th June, 1836, and the plaintiff gave evidence of goods supplied on the 28th May, 1836, it was held that this was not a particular which could have misled the defendant, although he had bought goods of the plaintiff, and paid for them for the six months previous to the 28th May, 1836 (g). So, where the particular specified a bill for 607., bearing date on a certain day, and the evidence was of a bill for 631., dated on a different day, in the same year and month, Abbott, J., held the variance to be immaterial (h). So, where a payment made on account of the defendant to A. was stated in the particulars 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 particulars (2). So, in an action for work and labour, where the particulars stated that plaintiff claimed for work and labour under an agreement, (3) Hay v. Fisher, 2 M. & W. 722. (a) Macarthy v. Smith, 8 Bing. 145; 1 Moo. & Scott, 227, S. C. (b) See Lambirth v. Roff, 8 Bing. 411; 1 Moo, & Sc. 597, S. C. (e) Colson v. Selby, 1 Esp. 452; 2 Sellon, 339, S. C. (d) Davenport v. Davies, 1 M. & W. 570. (e) Lambirth v. Roff, 1 Moo. & Scott, 597: 8 Bing. 411, S. C.: Harrison v. Wood, 1 Moo, & Scott, 536; 8 Bing. 371, S. C. (f) Millwood v. Walter, 2 Taunt. 224: (g) Fleming v. Crisp, 5 Dowl. 454. (i) Day v. Bower, 1 Camp. 69, n: see BOOK IV. PART 1. Omission, when cured by Defen dant's Evidence. it was held that he might recover for extras (k). So, where the action is for money had and received to the use of the bankrupt, and the particulars for money had and received to the use of the plaintiffs, as assignees (1). So, in an action against an agent for not accounting for goods delivered to him by the plaintiff to be sold, and for goods sold, and money had and received, and the particulars were headed, “A. to B. tierces of porter, &c., £ -," and contained also items for money had and received, they were held to be applicable to any of the counts in the declaration (m). So, in an action by a carrier, who had mis-delivered certain goods to the defendant, which the latter appropriated to his own use, the carrier having paid the amount of the goods to the real owner, it was held that he might recover on the count for money paid, although his particulars were only "To seventeen firkins of butter, 551. 6s." (n). So, in an action for goods sold, where the particulars were for " chalk," and the proof was for "caulk," the variance was held immaterial, as it was not likely to mislead (o). Disbursements have been held recoverable under an item in the particulars for "cash advanced” (p). 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 (q). So, in ejectment to recover premises forfeited by non-payment of rent, a variance between the amount of rent proved to be due, and the amount demanded in the particulars, was holden not to be material (r). Where the particulars of the plaintiff's demand were on an account stated, "as appears by a memorandum under the hand of the defendant of this date," and the memorandum was inadmissible for want of a promissory note stamp, it was held, that the account stated might be proved by other evidence than the memorandum. It was held, also, that verbal evidence was admissible of an admission of the money being due, and a promise to pay it by instalments, though such admission and promise were made at the time of signing the memorandum, and were embodied in it (s). Also, although the plaintiff is confined in his proof to the iteins contained in his bill of particulars, yet if it appear from the defendant's evidence, that he is entitled to recover for items not included in the bill, he shall recover for such items (t). But where, in an action for lottery tickets sold, the particulars of the defendant's set-off mentioned the sale of the tickets to himself, it was held that this was not sufficient proof of the sale, and that the fact must be proved by other evidence (#). (k) Lines v. Rees, 1 Jurist, 593. (n) Brown v. Hodgson, 4 Taunt. 189; (a) Davies v. Edwards, 3 M. & Sel. 380: and see Lambirth v. Roff, 8 Bing. 411; 1 Moo, & Scott, 597, S. C. (r) Tenny v. Moody, 10 Moore, 252; 3 Bing, 3, S. C. (s) Singleton v. Barrett, 2 C. & J. 3. (t) Hurst v. Watkis, 1 Camp. 68: cord per Parke, B., in 1 M. & W. 486: see 1 Phil. Evid. 182; Rosc. 39: Holland v. Hopkins, 2 B. & P. 243. (u) Miller v. Johnson, 2 Esp. 602: Harrington v. M'Morris, 5 Taunt 229: sed quære? It seems also, that where the particulars need not be given as CHAP. XV. to some counts, the omission in them of those causes of action Special will not be material. Therefore the delivery of a particular Counts not under the indebitatus counts will not prevent the plaintiff affected by. from giving evidence on a special count in his declaration, if he has not included that part of his claim in his particulars, as a particular is only necessary to explain the indebitatus counts (y). And, where the first count was on a bill of exchange for 40%., and the second on a bill for 207., and the third for goods sold, and the particulars specified only the 207. bill and the goods-per Abbot, C. J., "That is no objection. If the bill is specified in the declaration, it need not be mentioned in the particulars. You must give a particular of goods sold, but you never need give a particular of bills of exchange if they appear in the declaration" (z). But where the plaintiff declared upon three bills of exchange; but sought by his particular to recover on the bill set out in the first count only, it was holden that he might give the other two bills in evidence to prove a collateral matter, namely, the partnership of the defendants (a); but it was considered that he could not give them in evidence as a substantive cause of action (a). Though, according to a more recent case, he might have done so, had the particulars stated that the plaintiff would rely on the whole or any part of the declaration (b). from former The plaintiff may give evidence of a demand contained in Proof of the particulars, though he omitted to include it in a bill de- Items omitted livered before action brought (c). But this would in most Bill. cases operate against him in evidence as to the additional items; and the delivery of a former bill is conclusive evidence against an increase of charge on any of the same items contained in a subsequent bill (d). No proof of the order for, or delivery of, the particulars of Particulars, demand or set-off is requisite at the trial, when they have been how proved. annexed to the record (e); but the particulars are not part of the record (f). When not so annexed, in order to prove them at the trial, the judge's order, with the particulars, should be produced, and evidence given of the plaintiff's, attorney's, or agent's signature to the latter, unless admitted by him (g). (y) Day v. Daries, 5 C. & P. 340: and see Cooper v. Amos, 2 C. & P. 267: Fisher v. Wainwright, 5 Dowl. 102; 1 M. & W. 480, S. C. (2) Cooper v. Amos, 2 C. & P. 267. (a) Duncan v. Hill, 2 B. & B. 682. (b) Hay v. Fisher, 2 M. & W.722. 49. (c) Short v. Edwards, 1 Esp. 374. (d) See Loveridge v. Botham, 1 B. & P. (e) Macarthy v. Smith, 8 Bing. 145; 1 (f) Booth v. Howard, 5 Dowl, 438. CHAP. XVI. granted. CHAPTER XVI. COMPOUNDING PENAL ACTIONS. IN all actions by common informers for penalties upon any Leave to com- statute, the court, upon application, may give the plaintiff pound, when leave to compound with the defendant (a). No composition can be made, unless by the order and consent of the court in which the suit is pending, under pain of 107., and of being ever afterwards disabled from suing in any popular action (b). This leave of the court, however, is not necessary in actions by the party grieved (c). It is entirely in the discretion of the court to grant it or not (d). And the court have refused to grant it in an action on the 25 G. 2, c. 36, for keeping a disorderly house, &c. (e); also in an action where part of the penalty was given to the poor (ƒ). How obtained. The composition is made on the consent of the parties. It cannot take place before the defendant has pleaded (g). And the court will seldom allow of it after verdict, unless circumstances be stated to them which entitle the defendant to such an indulgence (h), as where he is very poor, &c. (i). The motion for this purpose is grounded on an affidarit by the plaintiff, or his attorney, stating shortly the substance of the declaration and plea and the state of the cause, and the sum for which the parties have agreed to compound the action (j). The defendant or his attorney should make an affidavit to the same effect. Take these affidavits, with the declaration and plea, to the Solicitor of the Treasury, who will lay them before the Attorney-General for his consent. As soon as the Solicitor of the Treasury ascertains whether the Attorney-General consents to or refuses the composition, he generally writes to the plaintiff's attorney informing him of it. The plaintiff's attorney then ap plies at the Treasury, and if the Attorney-General consents, you have to pay the solicitor 5l. 1s. 4d., who hands to you the papers left, and also a consent brief of the Attorney-General, consenting on the part of the crown to the action being com pounded, and for one moiety of the penalty to be paid to the plaintiff, and the other moiety to remain for the crown. The (a) 18 El. c. 5, ss. 3, 6. (b) Ib.: see Rer v. Crisp, 1 B. & Ald. (c) Kirkham v. Wheely, 1 Salk. 30. (f) Hunson v. Sprange, 2 Smith, 195. (h) Crowder v. Wagstaff, 1 B. & P. 18: (i) Bradshaw v. Mottram, 1 Str. 167. 5) Where the act gives costs to the prosecutor, he has been allowed to receive a certain sum and costs of suit, which together amounted to more than the sum paid to the crown. (North v. Smart, 18. & P. 51: Wood v. Johnson, 2 W. Bla 1157). But this has been refused where the sum stipulated for costs was so dispro portionate as to prove collusion (d v. Cassian, 2 W. Bl. 1157): and where the act does not give costs, and the defendant is willing to compound for a certain sum, and to give a further sum for costs, the crown is entitled to half of such further sum, it only being in the nature of an addition to the composition. (Lee v. Cas, 2 Taunt. 213). |