372 DEFENSIVE PLEADINGS Ch. 18

MOTION FOR A BILL OF PARTICULARS

187. Where the plaintiff filed a Declaration containing General Allegations, which operated to expand the Scope of the Evidence which he might offer in Proof thereof, and the defendant desired to compel the plaintiff to be More Specific, he moved for a Bill of Particulars.

Bills of Particulars 20

ASSUMING the plaintiff has filed a Declaration in a Common Law Action which contains a General Allegation, how could the defendant compel the plaintiff to make his General Charge specific? The answer is

Particulars at Common Law and under Modern Codes, Practice Acts and Rules of Courts, see:

Upon Negligence, 49 Cent.L.J. 362 (1899); Landrum, Bills of Particulars in Actions Based on Negligence, 50 Cent.LJ. 364 (1900); Caskey & Young, The Bill of Particulars—A Brief for the Defendant, 27 Va. L.Rev. 472 (1941); Simpson, A Possible Solution to the Pleading Problem, 53 Harv.L.flev. 169 (1939); Van Hook, The Bill of Particulars in Illinois, 19 Ill.L.Rev. 315 (1925); Loth, Pleadings and Motions, 29 Iowa L.Rev. 23 (1943).

Comments: Pleading—Construction of Supreme Court Rule as to Bill of Particulars, 20 Ill.L.Rev. 170 (1925); Necessity of Answer to Allegations of Bill of Particulars, 2 Fed.Rules Serv. 642 (Chicago 1939); Motion for Bill of Particulars “to Prepare for Trial,” 3 Fed.Rules Serv. 681 (Chicago 1940);

dies to Clarify the Complaint: O’Donnell v. Joliet & Eastern Ry. Co., 338 U.S. 384 (1949), 35 Cornell L.Q. 888 (1950).

that he might accomplish this end by moving for a Bill of Particulars. The Procedural Device known as a Bill of Particulars enabled a defendant to ascertain the details of th plaintiff’s claim. The mere naming of this Device raises two questions; one, as to its Origin, two, as to its Scope and Application.

As to its Origin, it may be said that its de• velopment was late in point of time. No satisfactory explanation of this has been given, but it is surmised that the Origin of the Bill of Particulars is connected with the fact that the early Common Law employed a System of Oral Pleading, which, unlike Mod- ern Pleading, was conducted in Open Court in advance of the Trial by the Parties or their Counsel by word of mouth. Since the Pleading took place Orally in the presence of the Court, the Judge could direct each Stage of the Pleadings and compel the Parties to reach an Issue on which both parties were prepared to stand.

Thus, to illustrate, let us suppose that A, in stating his case, alleged that B took his horse, whereupon B inquired, what horse? Thereupon, the Judge required A to specify what horse, to wit, a black horse, with a white forefront foot. The plaintiff’s Allega- tion having been made Specific, the defend- ant B might object that A’s case was insuffi- cient in Law, he might deny the plaintiff’s charge, or he might seek to avoid the alleged liability by admitting the taking of the horse, and then offer the excuse that he took the horse under an Execution. Assuming B ad- mitted the taking and offered the excuse that he took the horse under an Execution, the Judge could turn to the plaintiff, A, and say, how about this? If A traversed B’s Plea, an Issue of Fact was raised as to whether B took the horse in Execution; if A Demurred to B’s Plea, an Issue of Law was raised as to whether the taking by Execution was a legal- ly sufficient excuse. At each stage of this Oral Altercation, during the early Develop- mental Period of Pleading, the Court was