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doubt be competent for the defendant to return it, as in other cases of irregularity, with notice of the objection. If the defect be one of substance or mode of statements, a motion for a further account or further bill will be the proper course. If any extrinsic facts be necessary to show the defect complained of, those facts must be stated, and the defect made apparent upon the moving affidavit. If the defect be patent upon the face of the paper itself, extrinsic proof will of course be unnecessary. The motion must be made in the usual course, grounded on the complaint, or complaint and answer, if the motion be against a defendant, the demand or order for delivery, on the defective paper itself, proof in the usual manner of service of the demand or order, and of the paper impeached, and further proof of any extrinsic facts as above, when necessary See generally, as to the right to make such a motion, McKinney vs. McKinney, 12 How., 22.

The case of Wiggins vs. Gans, 3 Sandf., 738; 1 C. R. (N. S.), 117, will, though not strictly in point, afford a clearer indication as to what a court would clearly consider to be an insufficient compliance with a demand or order when made.

In Kellogg vs. Paine, 8 How., 329, the following is stated as the criterion: A party setting up an account is bound, when called upon, "to specify the several items, stating, with all practicable particularity, the date and extent, and general character of each item, as he intends to have it allowed at the trial. The account, like the pleading, should state the facts which the party pleading proposes to establish by proof, if controverted." If it fall short of this, it will be defective.

Where the particulars applied for are actually or presumptively within the personal knowledge of the applicant himself, he cannot claim, as a matter of right, that the defendant deliver them, and the latter will not be bound to do so, unless under special order, upon special necessity shown. West vs. Brewster, 1 Duer, 647; 11 L. O., 157; Depew vs. Leal, 5 Duer, 663. See also, Young vs. De Mott, 1 Barb., 30, as to imposing an application for discovery as a condition precedent to the application for such an order. See likewise, as to allowing time for that purpose prior to granting a final order for exclusion of evidence, Kellogg vs. Paine, 8 How., 329 (333).

Nor can a plaintiff, on giving a bill of particulars, be compelled to furnish those of offsets or payments, with which he has volunteered to credit the defendant. Williams vs. Shaw, 4 Abb., 209.

The right to demand particulars does not extend to compel a statement of items which may enter into the computation of damages, in an action for their recovery. Murphy vs. Kip, 1 Duer, 659.

Nor, in an action for conversion of property, can the plaintiff be compelled, as of course, or of right, to deliver a particular description of the

property in respect of which his claim is made. The making of such an order rests in the discretion of the court. Blackie vs. Neilson, 6 Bosw., 681.

The right to demand a further, and more particular bill, extends to, and is exercisable in, proceedings to foreclose a mechanic's lien. Brown vs. Wood, 2 Hilt., 579.

As to this being the proper form of procedure where the complaint or other pleading is merely deficient in specification of details, and not in certainty of statement of a claim when made, see heretofore, under the head of Motion for Uncertainty, book VI., chapter IV., section 135, and cases there cited.

On the other hand, a demand of this nature will be construed as an admission that the pleading is otherwise sufficient, and as waiving the right to make a motion on that ground. See McKinney vs. McKinney, 12 How., 22.

When delivered, a bill of particulars limits the amount of the recovery of the party pleading. and he cannot introduce evidence of claims not embraced in it. Bowman vs. Earle, 3 Duer, 691. It is regarded as an amplification of the pleading to which it relates, and is to be construed as forming a part of it (694). It may, however, in the same manner as a pleading, be made to conform to the facts proved. See Barth vs. Walther, 4 Duer, 228. And, doubtless, is, in like manner, amendable, by leave of the court.

And, when furnished, it is subject to the same rules as a pleading, with regard to the disregard of immaterial variances between it and the evidence given, when there is no proof that the adverse party has been surprised or misled. Seaman vs. Low, 4 Bosw., 337.

The case of delay in furnishing a particular or account when demanded has, in one respect, been left unprovided for. An order, when granted, has no operation either as a stay of proceedings or as an extension of the applicant's time to answer. A special application must be made for either purpose. This may, of course, be applied for separately, but a more convenient course will usually be to make a demand for that purpose as part of the original application. Nor will a mere stay of proceedings effect, per se, an extension of the time to plead. It must be specially applied for, and the special affidavit prescribed by rule 22 (20), presented upon that application. Platt vs. Townsend, 5 Duer, 668; 3 Abb., 9.

In Yates vs. Bigelow, 9 How., 186, it was held that a further account of this nature may be enforced by motion, after all the pleadings have been put in, its chief object being to enable the defendant to prepare for the trial.

The order for a further bill of particulars should show upon its face

the points in which the former one was defective, and as to which a further specification is required. Kellogg vs. Paine, 8 How., 329.

And, in the same case, it was held to be the better practice for a party who intends, under the provisions of the section, to preclude his adversary from giving proof of his demand, on the ground of a default of the above nature, to apply for an express order to that effect, on motion, before the trial, so as to have the question previously settled. Vide Graham, 519, there cited.

(b.) DISCOVERY, &c.

The next point to be considered is, as to whether the inspection of any books, papers, or documents, in the possession or under the control of the plaintiff, is necessary or advisable, on the part of the defendant, for the purpose of enabling him to prepare his answer in the action. If so, he possesses, under section 388 of the Code, the power of enforcing that inspection, and obtaining a copy, or permission to take a copy of the documents inspected, by means of an order of the court, which order, as before remarked, stays all proceedings, and extends the time to answer until it is either complied with or vacated. The measures for this purpose, and the cases on the subject, will be found fully treated of hereafter, in connection with the proceedings between issue and trial. Of a similar nature are the powers conferred by the chapter of the Code in reference to the examination of parties, chapter VI. of title XII. of part II., and particularly by section 391, in that chapter. In Chichester vs. Livingston, 3 Sandf., 718; 1 C. R. (N. S.), 108, doubts were entertained as to whether this proceeding could be taken before issue joined, unless upon leave specially obtained from the court. This opinion is, however, expressed very doubtfully, and with an express reservation, that cases might arise, where the ends of justice required such examination, before answer or reply; and Miller vs. Mather, 2 C. R., 101, is direct authority to the contrary. It was there held that “such examination, being provided by the Code as a substitute for the former bill of discovery, is governed by the rules applicable to such bills; and a discovery, by bill of discovery, might be had at any time during the progress of the suit." The latter view seems the correct one. Under section 391, the examination may be had "at any time before the trial, at the option of the party claiming it;" and all that is there prescribed, is a previous notice to the party to be examined, and any other adverse party, of at least five days, unless by special order of the court. There is nothing in this section, or in any other part of the chapter above referred to, to qualify the above provision; and, therefore, it appears to be clear that, in cases where an examination of the plaintiff is absolutely essential for the purposes of the defence, that

examination may be had in this manner, before answer put in, and for the purposes of that answer. Of course, this proceeding will not be taken without due deliberation, because the chapter in question appears to contain no provision enabling the defendant to repeat such examination, when once had. At the actual trial, however, the adverse party may, it would seem, be called as a witness, in all cases; though, if so called, his previous examination cannot then be used. The proceedings in relation to the above measure, on the part of the defendant, will also be found fully considered, and the cases cited in detail, in connection with the proceedings between issue and trial.

§ 163. Precautionary Proceedings.

The next point to be noticed, is that of certain precautionary proceedings which the defendant is at liberty to take, with reference to the further prosecution of the suit by the plaintiff.

(a.) SECURITY FOR COSTS.

The first of these is the defendant's power to require security for costs, in certain cases.

This is a matter of statutory regulation, the provisions as to which will be found in title II., chapter X., part III. of the Revised Statutes; 2 R. S., 620, 621.

Under section 1 of that title, the defendant may require the plaintiff to file security for the costs of the suit or proceeding, when commenced in any court.

1. For a plaintiff, not residing within the jurisdiction of the court, or for several plaintiffs who are all non-residents; or,

2. For, or in the name of the trustees of any debtor; or

3. For, or in the name of any person being insolvent, who shall have been discharged from his debts, or whose person shall have been exonerated from imprisonment, pursuant to any law, for the collection of any debt contracted before the assignment of his estate; or,

4. For, or in the name of any person committed in execution for any crime; or,

5. For, or in the name of any infant whose next friend has not given security for costs.

If, too, after the commencement of the suit, the plaintiff, or all the plaintiff's shall subsequently become classifiable under Nos. 1, 3, or 4 of the above provisions, the defendant may likewise require such security under section 2. As to actual non-residence being the criterion, without regard to any future intentions of the party, see Gilch vs. Barnaby, 1 Bosw., 657; 7 Abb., 19.

In addition to the provisions above noticed, there is also a special power contained in section 317 of the Code, empowering the court to require the plaintiff to give security for costs, in actions prosecuted or defended by executors, or other parties standing in a fiduciary relation. The giving of security for costs is also imposed as a condition on suits brought by a foreign corporation. See section 1, article I., title IV., chapter VIII., part III., of the Revised Statutes; 2 R. S., 457, § 1. An omission to do so in the first instance is, however, only an irregularity, and may be cured by subsequent compliance with the statute. See Hartford Quarry Company vs. Pendleton, 4 Abb., 460; or it may be waived. Merchants' Bank vs. Mills, 3 E. D. Smith, 213; Persse & Brooks' Paper Works vs. Willett, 14 Abb., 119.

It has been held also that the giving the ordinary undertaking, on the part of the plaintiff, on taking property in replevin, satisfies this provision, and that he will not be obliged to file a separate bond for that purpose. Wisconsin Marine and Fire Insurance Company Bank vs. Hobbs, 22 How., 494. See however, generally, per contra Boucher vs. Pia, 14 Abb., 1.

By section 3 of the title now immediately in question, title II., chapter X., part III., it is thus provided:

§ 3. The order to file such security, and that all proceedings on the part of the plaintiff be stayed until such security be filed, and the sureties shall justify, if excepted to, may be made by the court in which the action is pending, or by any judge thereof in vacation, upon due proof, by affidavit, of the facts entitling the defendant thereto.

Section 4 provides that such security shall be given in the form of a bond, in a penalty of at least $250, with one or more sufficient sureties, to the defendant, conditioned to pay, on demand, all costs that may be awarded to the defendants in such suit.

Under section 5 such bond is to be filed with the clerk of the court, and notice thereof is to be given to the defendant or his attorney. Within twenty days after service of that notice the defendant may except to the sufficiency of the sureties, by giving notice of such exception to the plaintiff's attorney.

The form of justification is thus specially provided for:

6. Within twenty days after such notice of exception, the sureties shall justify, by an affidavit, that they are worth double the penalty of such bond, over and above all debts; of which affidavit a copy shall be served on the defendant or his attorney. Such justification shall operate to discharge the order to stay proceedings.

In cases in which the defendant is entitled to require security at the

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