missible of matters not contained in the bill, where the object is to rebut evidence of a claim of the opposite party. 36 Where one only of several joint debtors is sued, and the bill of particulars runs against the defendant alone, without mentioning his co-debtors, the defendant is not confined in his evidence to demands for which the defendant solely is liable, there having been no plea in abatement.37 38 An admission in the defendant's particular of set-off cannot be used by the plaintiff as evidence in support of his claim. The insufficiency of a bill of particulars, in any respect in which it might have been rectified if the objection had been made Erroneous earlier, cannot be objected to on the trial. An erroneous date or other variance. 39 immaterial date, which is not calculated to mislead the defendant, will not preclude the plaintiff from recovering his demand.40 So any immaterial variance between the bill and the evidence, will not prejudice the plaintiff: it is enough if they agree in substance.41 Thus in an action of debt for rent, in which the declaration did not set forth where the lands were situated, and the bill of particulars described them in a wrong parish, it was held that the plaintiff might recover, unless the defendant could show, not only that he might have been, but that he actually was, surprised.42 But it is otherwise where the variance is material, or calculated to mislead; and it was held that evidence could not be given, of work done in 1820, where the date in the bill was April first, 1821.43 A variance between the proof and a bill of particulars can the trial the defendant proved the 36 2 Wend. Rep. 593. 37 9 Cowen. Rep. 44. 39 1 Tidd. Pract. 646. 1 Holt's N. P. Rep. 552. 40 2 Taunt. 224. 41 6 Cowen. Rep. 454. 42 3 Maule & Selw. 380. et vide R. St. P. 3. Ch. 7. T. 3. s. 79. Vol. 2. p. 406. Ante, Vol. 1. p. 427. 43 2 Wend. Rep. 577. not be urged on the argument of a case, if the objection was not taken at the circuit.4 Amending bill.] If a bill of particulars be incorrect, or insufficient, the party who delivered it may have leave to amend it. These amendments are very much a matter of discretion, and will be allowed as in other cases, where doing so will further the ends of justice.46 It seems that a judge at chambers has no power to grant an After trial, amendment after a cause has been noticed for trial.47 But the court have allowed the plaintiff to amend his bill, after the cause had been once tried, and a new trial being granted, twice noticed for trial afterwards;48 but this was on terms of paying all the costs if the defendant should elect to change his plea, so as to vary the defence; and if not, then the costs of the motion.49 And the plaintiff, after having been nonsuit- or nonsuit. ed, has been allowed to amend his bill of particulars, and go to a new trial.50 CHAPTER VIII. OF BRINGING MONEY INTO COURT, AND OF TENDER AFTER ACTION BROUGHT. Origin of practice. When a person is satisfied that he is indebted to another but disputes the amount claimed of him, he may, either in the first instance tender to his creditor the sum which he thinks he really owes; or after an action has been brought, he may pay that sum into court, and let the plaintiff afterwards proceed at his peril.1 This latter practice is said to have been introduced in England in the time of Charles the Second, to avoid the hazard and difficulty of pleading a tender. A still greater improvement is introduced by the revised statutes which allow tenders after suit brought, and contain other highly important proviDivision of sions. We shall here consider, first, in what cases, at what time, and in what manner, money may be paid into court, the effect of the proceeding, and the rules respecting the payment of costs; and secondly, the subject of tender after an action has been commenced. subject. 3 PAYMENT OF MONEY INTO COURT. General rule. In what cases.] The general rule is, that money may be paid into court, in actions brought upon a contract, where the sum demanded is either certain, or capable of being ascertained by mere computation, without leaving any sort of discretion to the 12 Archbd. Pract. 199. Str. 787. Com. Dig. Pleader, C 10. 3 See post. jury. Thus it is allowed in assumpsit, where the breach is against car the non-payment of money; but not otherwise. In actions Assumpsit. against carriers indeed, where they have given notice not to be Actions accountable for goods beyond a certain amount, they are riers. allowed to pay that amount into court; but they will not be allowed to pay money into court, in assumpsit for injuring the plaintiff's goods. debt. In debt for rent, the defendant may pay money into court, Actions of according to the practice in all the English courts." It must be observed that there is a distinction between those actions of debt, wherein the plaintiff cannot recover less than the sum demanded, as on a record, specialty, or statute, giving a certain sum by way of penalty;10 and those actions wherein the plaintiff may recover less, as in debt for rent," or on simple contract.12 In the former, the defendant cannot bring money into court;13 though he may move to stay the proceedings on payment of the whole penalty and costs;14 but, in the latter, the defendant is allowed to bring money into court,15 because the plaintiff does not recover according to his demand, but according to the verdict of the jury. delicto. In actions for a trespass, or other tort,16 as in an action Actions ex against a sheriff for a false return," money cannot be paid into court: but in trover, under certain circumstances, money, and Trover in even a specific chattel, has been allowed to be brought in; as ses. in an action of trover for money.18 certain ca Where there are several The rule appears to be, that where trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstances that can enhance the daImages above the real value, and its real and ascertained value is the sole measure of damages, there the specific thing demanded may be brought into court; but where there is an uncertainty, either as to the quantity or quality of the thing demanded, or there is any tort accompanying it, that may enhance the damages above the real value of the thing, and there is no rule whereby to estimate the additional value, there it shall not be brought in.19 There is said to be no precedent, where there are several defendants. defendants, for one to pay money into court.2 Paying money upon certain counts. 20 Where there are several counts or breaches in the declaration, and as to some of them the defendant may bring money into court, but not as to the others, he may obtain a rule for bringing it in specially upon some of the counts or breaches only. Thus where an action of covenant was brought upon a lease for non-payment of rent, and not repairing, &c., the court of king's bench made a rule, that upon payment of what should appear to be due for rent, the proceedings as to that should be stayed; and as to the other breaches that the plaintiff might proceed as he should think fit.22 So in covenant upon a charter-party, the defendant was allowed to bring money into court upon two of the breaches only; viz., for freight and demurrage.23 Formerly in an action by an executor or administrator, the plaintiff not being liable to costs, the defendant was not al 19 Salk. 597. n. c. et vide 1 Johns. Rep. 65. 20 2 Black. Rep. 1030. 21 1 Tidd. Pract. 671. 22 Ib. 2 Salk. 596. 1 Wils. 75. Barnes, 350. 23 2 Burr. Rep. 1120. et vide 1 Tidd Pract. 672. |