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1832.

HARRISON V. WOOD.

THE Plaintiff declared in assumpsit for salary due to him as the Defendant's travelling clerk, and for the amount of disbursements he had made for the Defendant.

May 1.

A particular of demand is

not to be con◄ strued so rigidly as to nonsuit a

not mislead. Disburse

At the trial before Tindal C. J. he proved that he had plaintiff for been introduced to the Defendant towards the end of inaccuracies March 1830; that the Defendant had then engaged him which could as travelling clerk at 100l. a year, the expense of his journeys to be defrayed by the Defendant; and that he, the Plaintiff, had disbursed 517. 9s. 6d., the expense of journeys performed between the 29th of March and 26th for "cash of September 1830.

The Plaintiff's particular of demand was as fol

ments held recoverable

under an item

advanced."

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On the part of the Defendant, it was objected that these disbursements could not be recovered under a particular claiming for cash advanced; and that the 50l. 7s. 7d.

50 7 7

59 1 11

1832.

HARRISON

V.

WOOD.

50l. 7s. 7d. for which the Defendant had credit, covered the real amount of salary due, which, at 1007. a year, was less than 50l. from March 29th to September 26th.

Whereupon the Plaintiff was nonsuited.

A rule nisi having been obtained for a new trial, on the ground that " cash advanced" ought to be deemed to include disbursements,

Jones Serjt., who shewed cause, relied on the objection taken at the trial, and also on the circumstance that the dates of the disbursements did not agree with those of the advances specified in the particular.

TINDAL C. J. If this had struck me at the trial as it does now, I should have reversed the situation of the parties. In both points, I think this particular ought to have the operation for which the Plaintiff contends. In the first place, we ought not to narrow the term "advances" so as to exclude disbursements; which, though not strictly, were in effect advances made to the Defendant, since he was under an engagement to defray the expense of the Plaintiff's journeys. Secondly, as to the mistake in point of dates, if it had been such as to occasion any doubt, we might have thought it right to hold the Plaintiff to the strict language of the particular; but, according to the evidence adduced at the trial, the Defendant must have been well aware that this was a mistake, and that April was written for September. The Plaintiff and Defendant were strangers to each other till the end of March, when the Plaintiff was introduced for the first time, and the agreement between the parties was entered into. Now, could it be supposed that any money had been advanced except under that agreement? We should pervert the intent of a bill of particulars, if we were to allow it thus to be

the

the means of entrapping a plaintiff. The case falls within the decision in Millwood v. Walter (a), where it was holden that an erroneous date to a bill of particulars would not preclude the plaintiff's demand if the date could not mislead.

The sum for which the Plaintiff gives credit is only a conditional admission, of which the Defendant is not to take an unfair advantage.

PARK J. referred to Day v. Bower (b), where it was held that the plaintiff's particular is sufficient, however inaccurately drawn up, if it convey the requisite information to the plaintiff; and to Davies v. Edwards. (c) In Wade v. Beasley (d) the particular mentioned only a promissory note; and that being unstamped, the plaintiff was not allowed to prove the consideration, because such proof would interfere with the revenue laws.

GASELEE J., with respect to the Defendant's taking advantage of the sum for which the Plaintiff gave credit in his particular, referred to Harrington v. Macmorris (e), where it was held that a plaintiff could not use a notice and particular of set off for evidence of the debt on the issue of non assumpsit.

ALDERSON J. Concurring, the rule was made

1832.

HARRISON

V.

WOOD.

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1832.

May 2.

WILSON V. COLLINS.

The payment ANDREWS Serjt., on the part of the Defendant, had

of costs for

not proceeding to trial is not a condition

precedent to ulterior proceedings, unless so specified in the rule.

obtained a rule nisi to defer the trial of this cause, till certain interlocutory costs, awarded for not proceeding to trial on a former occasion, should have been paid.

Wilde Serjt., who shewed cause, contended, that though, under extraordinary circumstances, the Court might make the payment of such costs a condition precedent to ulterior proceedings, yet that such was not the ordinary practice, and that no circumstances had been disclosed to justify the application which had been made. The party might issue his attachment.

Andrews suggested, that the Plaintiff was out of the way, and could not be served. But

The Court thought it would occasion great inconvenience to make the payment of such costs a condition precedent in ordinary cases, and the rule was

Discharged.

1832.

ARIEL V. BArrow.

THE Plaintiff's attorney, in order to prevent the De-
fendant from entering up judgment of non pros for
want of a declaration, which he was in a condition to do,
obtained a rule to discontinue upon payment of costs,
and gave notice of an appointment to tax the costs.
This rule expired on the 6th of February 1832.
the Plaintiff, instead of paying the costs or entering a
discontinuance, on the 7th served the Defendant with
a declaration. The Defendant upon this entered up
judgment of non pros, which

But

May 7.

The Defendant being in a enter judgment of non pros for want of a declaration, the Plaintiff, with a view to prevent the non pros, obtained

condition to

a rule to discontinue on

payment of

Jones Serjt. obtained a rule nisi to set aside as ir- costs; howregular.

Wilde Serjt., who shewed cause, relied upon the appointment to tax costs, as being in itself a discontinuance, when

ever, instead of paying costs or discontinuing, as

soon as the rule had expired, he served the Defendant with a declar

ation: Held

Jones, in support of his rule, referred to Edington v. Bowdenham (a), and urged that the rule to discontinue a fraud on having been obtained subject to the condition precedent the proceedings of the of paying costs, the Plaintiff was at liberty to renounce it if he rejected the condition. But

The Court, without deciding the question of law, held the conduct of the Plaintiff's attorney to be in the nature of a fraud upon the proceedings of the Court. Instead of making a direct application for time, he had taken out a rule which he had no intention to act upon, thereby

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Court; and the Defendant having entered up judgment of non pros, the Court refused to set it

aside.

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