PART IV. dence, opera Where the action was brought against an heir and devisee, on a bond, and issue was taken on the fact, whether the defendant had sold the estate for more than 1687. a lease and release were produced in evidence, from which it Written eviappeared that the defendant had sold the estate for 210l., tion of against but it was held that he was at liberty to prove that part of strangers. the estate so sold did not belong to the testator, but had been purchased by the defendant for the sum of 421. in order to be sold to the vendee (c). Here the evidence was consistent with the terms of the deed; but even if it had not been so, it seems that it would still have been admissible as between those parties, for although, as between the defendant and the vendee, the defendant might have been estopped by his deed from making any averment against it, yet as between the plaintiff and defendant there was no mutuality, and consequently no estoppel, and therefore the defendant was not concluded upon *issue joined as to * 1054 the amount for which the estate sold, from showing the real fact. It was held in the same case, that although the deed stated that the consideration was paid to the vendor, evidence was admissible to show that it was paid to a third person, with his privity. A party to a deed may in an action between others contradict the deed by his testimony; thus, one who has jointly with another executed an assignment of a ship, as of their joint property, is competent to prove that he had no interest in it (d). pendent opera With the exceptions already adverted to, the general in- General rule ference, as above stated, seems to be, that oral evidence as to the indemay be used indifferently as original and independent evi- tion of parol dence of a fact, either concurrently with or in opposition evidence. to written testimony; and that written evidence, however superior it may be, and frequently is in effect to mere oral evidence, does not in any case, of its own authority, unaided by an express rule of law, exclude such evidence (1), (c) Green v. Weston, Say. 209. (d) 1 T. R. 301 ; & supra, 17, 18. (1) [Parol evidence is admissible to enlarge the time of performance of a written simple contract. Keating v. Price, 1 Johns. Cas. 22. Or to enlarge the time for performing a condition; or to show a waiver of the performance of it. Fleming v. Gilbert, 3 Johns. 528. Or to prove an accord executed in discharge of a written agreement previously made. Hall v. Stewart, 5 Day, 428. Or to show that at the time of entering into articles for the sale of land, it was agreed by the parties, that the instalments should be paid in whatever money was current at the time they fell due, the articles not specifying the kind of money to be paid. MMeen v. Owen, 1 PART IV. * 1055 To confirm or contradict unauthenticated written evidence, In an action for bribery at an election, it was held that parol evidence was admissible to prove the delivery of the precept to the returning officer, although it appeared that the returning officer had indorsed upon the precept, with a view to prove it, the time of his having so received it, and that the indorsement had been attested by two witnesses (e). *So an instrument in itself defective and inoperative may be confirmed and supplied by oral testimony, and operate in conjunction with it. Thus, where in the bishop's register a blank was left for the name of the patron, it was held that this might be supplied by oral testimony (f), for as the presentation itself might have been by parol, it might have been proved by the aid of the suppletory (e) Grey v. Smithyes, 4 Burr. 2273. It appeared in the case of Reason v. Tranter, I Stra. 499, that the dying declaration of Mr. Lutterel, the deceased, had been taken down in writing, by a witness, at the instance of two justices of the peace who were present; the witness had afterwards copied the writing thus made, and produced it at the trial; but the original was not produced. The court held that the copy was not evidence. Upon this it may be observed, that although the copy was not evidence, the original being still in existence, and being better evidence than the copy, yet it seems, that in such a case, the mere fact that the witness reduced the declarations to writing at the time would not exclude parol evidence of those declarations, the instrument not being an authentic one, authorized by the statute of Phil. & Mary. (See Sayer's case, 12 Vin. Ab. 23, pl. 7.) In the same case other declarations of the deceased which had not been taken down in writing, made at other times, were received in evidence. See 2 Starkie's C. 208. The fact that a receipt has been given does not exclude para. evidence of payment by a witness who saw the money paid. Rambert v. Cohen, 4 Esp. C. 213. Cor Ld. Ellenborough. (f) Bishop of Meath v. Lord Belfield, 1 Wils. 215. Yeates, 135. 2 Dallas, 173. S. C. But where certain money had been made a legal tender by statute, parol evidence was held inadmissible to show what kind of money was meant under the words "current lawful money." Lee v. Biddis, 1 Dallas, 176. Bond v. Haas's Ex'rs. 2 ib. 133, Parol evidence is admissible, in an action by the indorsee against the indorser of a note, indorsed in blank, to show that at the time of the indorsement, the indorsee received the note under an agreement that he should not have recourse to the indorser. Hill v. Ely, 5 Serg. & Rawle, 363. S. P. Field v. Nickerson, 13 Mass. Rep. 138. Cummings v. Fisher, Anthon's N. P. 4. So in an action, by the assignee against the assignor of a sealed note, to recover back the consideration paid on the assignment, parol evidence was held admissible, on the part of the defendant, to prove that at the time of assigning the note, the plaintiff agreed to put it immediately in suit, and to take it at his own risk. Mehelm v. Barnet, 1 Coxe's Rep. 86. See also Storer v. Logan, 9 Mass. Rep. 55.1 parol evidence, consequently there was no unwarranted substitution of oral for written evidence. PARTICULARS, BILL OF. PART IV. THE object of a bill of particulars is to give the defen- Object of. dant more specific and precise information as to the nature and extent of the demand made upon him by the plaintiff, than is announced by the declaration (g), in a mode unencumbered by the technical formalities of * 1056 pleading. Hence, as will appear from the decisions on this head, referred to below, particulars are in general suf- When ficient, provided they be not so materially erroneous (h) as (g) Wherever the form of pleading is so general as not necessarily to enable the defendant to prepare fully for his defence, as where a general form is given by a statute, such as 9 Ann. c. 14, or 25 Geo. II. c. 36, it seems that the plaintiff would be required to furnish a bill of particulars. See Tidd's Practice, 7th edit. [Mercer v. Sayre, 3 Johns. 248.] So where the action is on a bond conditioned to indemnify or to perform covenants. So in ejectment on a forfeiture of a lease (Doe d. Birch v. Phillips, 6 T. R. 597); or if the plaintiff declare generally in ejectment, and without sufficiently specifying the lands sought to be recovered (7 East, 332); so the plaintiff may call on the defendant in ejectment to specify for what he defends, where it is not ascertained in the consent-rule. But where the particulars are specified in the declaration, as in actions of special assumpsit, covenant, debt, or articles of agreement, or in actions for torts specified in the declaration, an order for particulars does not appear to be requisite. Tidd's Practice, 613, 7th edit. In an action for assumpsit against the vendor for breach of contract in the sale of a house, with counts to recover the deposit, the plaintiff having in his first count alleged that the defendant, who was bound to make a good title, had delivered an insufficient abstract, the Court obliged the plaintiff to give a particular of all the objections to the abstract arising upon matters of fact (Collett v. Thompson, 3 B. & P. 246). In ejectment brought on a forfeiture of a lease, the Court will compel the plaintiff to give a particular of the breaches on which he means to rely. Doe d. Birch v. Phillips, 6 T. R. 597. (h) The particular should contain an account of the items of demand, and state when, and in what manner, they arose; and it is sufficient to refer to a particular already delivered, without re-stating it (Peake's C. 172. Tidd's Pract. 614, 7th edit.) If the bill specify the transaction upon which the claim arises, it need not specify the technical description of the right resulting to the plaintiff from that transaction (Brown v. Hodgson, 4 Taunt. 189). It will be a contempt of court to deliver a particular as general as the declaration (Brown v. Watts, 1 Taunt. 353); but it is sufficient if it convey the requisite information, although it be inartificially drawn up (1 Camp. 69). It has been said, that where there has been an account current, and the party means to give credit, the particular ought to state those items meant to be allowed (per Ld. Kenyon, Mitchell v. Wright, 1 Esp. C. 280). And where an attorney, by his bill of par sufficient. PART IV. probably to have led the * defendant into error; but if on the other hand the particulars vary so materially from the evidence as to render it probable that the defendant has not Sufficiency of. been apprized of the real claim intended to be made by the plaintiff, the latter will be precluded from going into evidence of that part of his demand. Objection to omission in, how taken. Defects in. 1058 In order to preclude the plaintiff from giving evidence of any item not included in the bill of particulars, the order for delivering the bill must be produced, and the delivery of the bill be proved (i). If a first bill of particulars has been delivered, under a Judge's order, and the plaintiff deliver a second without any order, he can give no evidence of any item which is not contained in the first particulars (k), for the latter will not supersede the former, neither will it confine the plaintiff in his evidence. Where the particulars stated merely that the demand was on a promissory note, which for want of a stamp could "not be given in evidence, it was held that the plaintiff could not go into evidence of the consideration for which the note was given (1). If the particulars state the demand to be for goods sold and delivered to the defendant, no evidence can be given of goods sold and delivered by the defendant as agent for the plaintiff (m). A mistake in the date, as to the demand upon a particular item, is not material where the date cannot mislead (n), as where the particular states the work for * which the action is brought to have been done in one month, when ticulars, claimed 200l., although, on allowing for payments, the balance was but 107, the plaintiff was compelled to take the balance without costs (2 Camp. 410). But the practice does not conform with these cases (Tidd's Pract. 614, (e), 7th edit.) And in a late case, Holroyd, J. held, upon an application at chambers, that it was sufficient to state the items on the debtor side only (Cooke v. Cooke, MS.). And see Miller v. Johnson, 2 Esp. C. 602, where Eyre, C. J. observed that it was never the intention, in compelling a party to give a particular under a Judge's order, to make him furnish evidence against himself, and that such an use could not be made of it. [Ryckman v. Haight, 15 Johns. 222. acc.] (i) Peake's C. 172. 2 B. & P. 243. 1 Esp. C. 195. 3 Esp. C. 168. (k) Brown v. Watts, 1 Taunt. 353. Short v. Edwards, 1 Esp. C. 374. (1) Wade v. Beasley, 4 Esp. C. 7. The action was by the payee against the executor of the maker. But see Brown v. Hodgson, 4 Taunt. 189, and supra, 1056, note (h). (m) Holland v. Hopkins, 2 B. & P. 243. (n) Milwood v. Walter, 2 Taunt. 224. in fact it was done in another month, and no work was done in the month so specified (p). PART IV. The plaintiff is not precluded from recovering a demand made in the particulars by his having omitted to include Defect in. the item in a bill delivered before the action was brought (q), But the previous omission may, under the circumstances, afford a presumption against the claim. A reference to an account delivered before the commencement of the action is a virtual compliance with the order for the delivery of a bill of particulars and the plaintiff is bound by the account (r). Where a party cannot have been misled by a mistake made in the particulars, the error is not in general material. Where the particulars specified a payment made by the Defect when plaintiff, on account of the defendant, to A., and it turned immaterial. out that it had been made to B., it was held to be sufficient, unless the defendant would make affidavit that he had been misled by the particulars (s). So where the particulars, in an action of debt for rent, stated the premises to be at A. instead of B., it was held to be no ground of nonsuit unless the defendant could prove that he held other premises at A. of the plaintiff (t). Where the plaintiff's particulars were for horses sold, and upon an account stated, and the defendant paid money into court sufficient to cover the latter demand, * and the * 1059 plaintiff failed on the former demand, it was held that he could not apply the money paid to the counts for horses sold, on which he had given no evidence; and he was nonsuitd (u). The plaintiff may recover interest, although the particular merely states a demand upon a promissory note (x). Where in assumpsit the defendant pleaded non-joinder in abatement, and the particular contained items as due from the defendant and his partner, who was not sued, it was held that the particulars supported the plea, although part of the demand was due from the defendant solely (y). The giving credit to the opposite party, where there has (p) 2 Taunt. 224. (q) Short v. Edwards, 1 Esp. C. 374. (r) Hatchet v. Marshal, Peake, 172. Etches v. Fellowes, Wightw.78. (s) Day v. Bower, 1 Camp. 69, n. 2 B. & P. 243. (t) Davies v. Edwards, 3 M. & S. 380. (u) Holland v. Hopkins, 3 Esp. C. 168. (x) Blake v. Lawrence, 4 Esp. C. 147. So where, the plaintiff' confined his particulars to one count of his declaration. (y) Colson v. Selby, 1 Esp. C. 452. And the Court of K. B. afterwards refused to set aside the nonsuit. |