
    [755] [*] CLINTON against LYON.
    IJST ERROR.
    Bill of particulars being delivered, no proof is requisite, that notice requiring it, was given.
    The action below was an action of assumpsit. The declaration contained a count for work and labor, an account stated, and the usual money counts. At the trial, the defendant produced a paper, purporting to be a bill of particulars, received from the plaintiff’s attorney, in order to confine the evidence to the items contained in the said bill of particulars. The counsel for the plaintiff denied that the plaintiff’s attorney had furnished the bill produced; whereupon the counsel for the defendant offered to prove by the attorney of the defendant, by parol, that he served the plaintiff’s attorney with a regular notice in writing, requiring a copy of plaintiff’s account and bill of particulars before plea filed; and' that he afterwards received from the plaintiff’s attorney the bill of particulars now produced. He did not, however, produce a copy of such notice. This evidence was objected to by the counsel for the plaintiff, and the evidence rejected by the [f] court, and the facts brought up by a bill of exception.
    
      
      Van Arsdale, for the plaintiff in error,
    contended, that a notice might be proved without producing a copy of such notice; the act did not require a written notice, but only a request, which, if verbally made, and a bill of particulars, in consequence of which, furnished, was sufficient. But they offered to prove a written notice delivered; and it was competent for them to do it. Doug. 479; 1 Saund. 316, 17; 1 Chitty on Pleadings, 415. Oyer defectively made, is binding.
    
      Sornblower, contra.
    He did not deny that [756] oyer defectively made, was binding, but he contended no oyer had been made in this case. Although the act does not say that the notice shall be in writing, yet the general principles of law and the established practice, in similar cases, required it. Our act, on the siibject of a bill of particulars, is not a new law, but a confirmation of the common law, manifested by universal practice. A demand of oyer must be in writing; the practice is uniformly so. But the true question is, whether parol evidence can be given of the contents of a notice; the practice is contrary. A copy of the notice served, is reserved, and proved to be a true copy. The notice may be for a particular paper; therefore, the precise copy of the notice is necessary to show the extent of the demand. 1 Swift Paid. 346; Gould’s Esp. 513; 3 Campbell, N. P. 110. It is true, that the notice need not be given to produce a notice; the reason is, that the copy is considered as an original.
   By the Court.

We all think the court below erred; that the testimony offered would have been sufficient, if proved, to establish the bill of particulars, circumstanced as this case was; the bill of particulars produced, being in the handwriting of the plaintiff’s attorney, and signed by him, the bill having [*] been given, is evidence of itself, of its having been required.

Lot the judgment be reversed, and in case a venire de novo should be moved, the plaintiff, if he requires it/ may have leave to amend the bill of particulars. Time being given plead de novo, if reqüired.  