
    Frederic Turner vs. James Twing.
    A party’s book of accounts is inadmissible, in this commonwealth, to prove cash payments above forty shillings in amount; nor is the application of the rule affected by the fact that an auditor, at the hearing before him, has examined the book as a voucher.
    After a case has been submitted to the jury under the charge of the court, a defendant, who has, throughout the trial, contested an item of the plaintiff’s claim on its merits, will be held to have waived an objection which might have been taken at an earlier stage, that such item was not included in the plaintiff’s bill of particular's.
    This was an action of assumpsit, brought in the court of common pleas, to recover the items set forth in the plaintiff’s bill of particulars. The writ also contained the money counts. The defence was payment and a set-off, consisting of several items. The action was referred to an auditor.
    The account in set-off was the same account filed by this defendant, in a prior action, in which Billings Brown was plaintiff) and in which the demand claimed was the following note: —
    
      “ On demand from date, July 10, 1846, for value received, I promise to pay Frederic Turner, or hearer, the sum of one hundred dollars, with use till paid. Given at Stockbridge, this 12th day of May, 1846. James Twing.”
    In that action, which was pending when this was commenced, Twing, the defendant, maintained that the account should be a set-off to the note, as the same had been transferred when overdue. The note was introduced by the plaintiff in this action, at the hearing before the auditor, as a reply to the set-off. No objection was made before the auditor to the examination oi all these claims.
    The auditor made a report, which both parties sought to impeach. On the issue to the jury, the plaintiff objected that the auditor had disallowed, in the plaintiff’s bill of particulars, a small item of $9.25, and two items of cash of five dollars each. The plaintiff also asked a disallowance of a credit of $100, given by the auditor to the defendant, and objected that the report allowed the defendant the amount of the above note for $100. The defendant claimed allowance on his set-off, of $13, which had been disallowed by the auditor. In all other particulars, both parties admitted the correctness of the auditor’s report.
    The defendant offered in evidence his • book of accounts which had been examined by the auditor, and asked that he might be examined in reference to it, upon his suppletory oath. The plaintiff objected that, as the defendant sought to impeach the report only as to the $13; a cash charge; the book was not competent evidence to go to the jury, and the presiding judge, Mellen, J., rejected it. The defendant then asked that the book might be examined by the jury without his sup-pletory oath, as a voucher upon which the auditor had passed. and to show a payment of the item of $9.25. The plaintiff objected, and the judge ruled that it could not go to the jury.
    After the arguments of counsel, and the charge to the jury, the defendant asked the judge to instruct the jury, that the plaintiff could recover nothing not borne upon his bill of particulars, and that the above note, not being thereon, could not be considered or passed on by them as a substantive claim of the plaintiff, on which a verdict for him could be rendered, but was admissible in evidence, and could be considered by them, only as in reply to the defendant’s set-off. The plaintiff admitted that it was introduced for that purpose before the auditor, but contended that it was admissible, by silent consent of the defendant, as an affirmative claim, and that the jury should pass upon it as such, and if, upon the evidence, they considered it unpaid, they might find a verdict thereon for the plaintiff. For the purpose of having the whole case passed upon by the jury, the judge so ruled.
    The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    
      F. Chamberlin, for the defendant.
    1. The defendant should have been permitted to put in his book of accounts, sustained by his suppletory oath, as evidence in the case; or, at any rate, it should have been given to the jury as a voucher, upon which the auditor had passed, and for the purpose of showing payment of the $9.25 charged upon the plaintiff’s books and disallowed by the auditor. Allen v. Hawks, 11 Pick. 359; Taunton Iron Co. v. Richmond, 8 Met. 434; Lazarus v. Commonwealth Ins. Co. 19 Pick. 81, 96.
    2. The note not having been owned or possessed by the plaintiff at the commencement of his suit, cannot be the foundation of a verdict in his favor; therefore the court erred in the instructions given as to the note, and also in refusing the instructions requested by the defendant. Smith v. Kirby, 10 Met. 150; Holland v. Hopkins, 3 Esp. R. 168; 2 B. & P. 243 ; Wade v. Beasley, 4 Esp. R. 7 ; Hurst v. Watlcis, 1 Camp. 68; Hatchet v. Marshal, Peake’s Cases, 172; 1 Dunlap’s Practice, 405.
    
      
      J. E. Field, for the plaintiff.
   Bigelow, J.

Both the iteras, in relation to which the defendant offered to introduce his book of account, were charges of cash payments, in amount above forty shillings, which, by the long-established rule, cannot be proved by such evidence. Nor does it make any difference in the application of this rule, that the book, in the present case, was examined by the auditor as a voucher. If the auditor admits incompetent evidence at the hearing before him, it is good ground for objecting to his report and setting it aside, but it does not authorize the introduction of the same illegal evidence again a the trial. There is nothing, however, to show that the booh, of the defendant, in this case, were admitted by the auditor as proof of any charge for which they were not competent. The court was right, therefore, in excluding them at the trial.

The remaining objection is, that the plaintiff was allowed to recover the amount of a note, which was not included in his bill of particulars. The writ contained the money counts, under which it was competent for the olaintiff to recover on the note, but he had failed to specify it as one oí the items of his claim. If this objection had been seasonably taken, it would have been well founded. One of the main objects of requiring a bill of particulars or specification of claim is, to notify the adverse party of the several items claimed under the general counts, that he may be prepared to meet them at the trial. Such specification may be amended, on motion seasonably made, and upon such terms as the court may think proper, if it is imperfect and does not include all the claims upon which the plaintiff intends to rely. The chief object in such cases should be, to guard against surprise. But in the present case, both parties proceeded, through the entire trial, upon the assumption that the note was duly specified. One of the main questions in contest before the jury was upon this note, and the merits of this part of the case were fully gone into. No objection was taken by the defendant to a reco very upon it, as a part of the substantive claim of the plaintiff, on the ground of its being omitted in the specification, until after the case had been submitted to the jury under the charge of the court. Under these circumstances, the defendant certainly cannot complain of surprise. He had full opportunity to raise the objection at an earlier stage of the trial, when the plaintiff might have obtained leave to amend upon proper terms. But it is quite too late, after a defendant has, throughout a trial, endeavored to defeat a claim upon its merits, and when, from the aspect of the evidence and the instructions of the court, he sees he is likely to fail in his defence, to seek to throw the claim out of the case, on the technical ground that it was not included in the specification of claim. Good faith in the conduct of trials, and an upright administration of justice, require that, in such a case, a party shall be held to have waived all such objections. Blaisdell v. Gladwin, 4 Cush. 373, 376.

Exceptions overruled.  