#### Asahel P. Brittingham *versus*William Stevens.

Dec. Term, 1828.

A party giving a bill of particulars under a Judge’s order, is not held thereby to furnish evidence against himself; but is merely confined at the trial to the range of proof which he himself has chosen. And where referees allowed the plaintiff to resort to the particulars of the defenant’s set-off to establish a fact, the evidence was held to have been improperly admitted.

Where referees certify to the court, that they have overlooked a circumstance connected with the accounts submitted, and request that the same may be sent back to them for re-examination, the court will set aside the award and send back the accounts to the same referees.

*Mr. J. Stevens*in behalf of the defendant in this cause, moved to set aside a report of referees, to whom the accounts of the parties had been submitted under a rule of court.

He read an affidavit setting forth, that in the progress of the investigation of the accounts before the referees, the counsel for the plaintiff read in evidence *a bill of the particulars of the defendants set-off,*which had been served upon the plaintiff’s attorney, pursuant to a rule obtained in the ordinary way, under a Judge’s order, *380for the purpose of proving the payment of a sum of money at a time. The counsel for the defendant objected to .the reacpng 0f the bill of particulars for the object stated; but it was admitted and received by the referees as evidence.

A certificate signed by the referees was also read by Mr. Stevens, stating a request on their part that the accounts, might be again sent back to them for examination, upon the ground that “ a cir- “ cumstance connected with the accounts had been overlooked “ by them in mating their report.”

The counsel for the defendant contended,

I. That the referees *ought not to*have admitted *the*bill of particulars, as evidence against the defendant.

II. That the mistake of the referees as proved by their certificate is sufficient to send the accounts to *new*referees on the merits. [He *cited 2 Esp.*N. P. C. 602. 2 *J. R.*62.]

*Mr. T. C. Pinckney*for the plaintiff contended,

I. That a party is bound to confine himself to his bill of particulars. [14. *J. R.*329. 15. *J. R.*222. 2 *Bos. & Pul.*243.]

The case cited from Espinasse, was an action for the sale of some lottery tickets, and the particulars of the defendant’s set-off were produced as *proof of the sale.*But here the bill of particulars was offered for the sole purpose of establishing the time at which a certain payment was made. It was not used to prove the account, or support the declaration, or to show admissions in favour of the plaintiff. For the purpose of identifying the »ime of a payment the particulars of set-off were admissible in evidence. [1 *Phil. Ev.*153-4., *and the cases there cited.]*

II The *certificate*of the referees ought not to be received by the court: 1. because it is not under oath : 2. because *“*the cir- “ cumstance connected with the accounts” which is said to have been overlooked, is not stated in the certificate. And thirdly, be*381cause parties are never permitted to introduce the certificates or affidavits of arbitrators, referees, or jurors to show a mistake. [6 *Cowens R.*53. *2 John. R. 92. 2 Arch. P. 225., &*292.]

*Per Curiam.*

The report of the referees in this case must be set aside, and the accounts referred back to them for re-consideration. The bill of the particulars of the defendant’s set-off, was not proper testimony to prove any fact; and is not to be viewed in the light of an admission. Its sole object js to point out and specify the party’s claims, and to restrict him at the trial to the range oí proof which he has himself chosen, so that the opposite party may be apprized of the charges which may be proved. A party giving a bill of particulars under a Judge’s order, is never held thereby to furnish evidence against himself; and it is in practice considered as a part of the pleadings.

The second ground assumed by the counsel of the defendant against the report is also well taken. It appears from a certificate furnished by the referees that a circumstance connected with the accounts was overlooked by them on their examination. What that circumstance was, we are not informed; but the court have a right to deem it an important one, since the referees themselves request that the accounts may be sent back to them for re-consideration. The affidavits of jurors cannot be received to show a mistake upon the grounds of public policy; because they may be tampered with. But the rule does not extend to referees. True it is, *this*certificate is not under oath; but that will not vary the case. If the court be satisfied that a mistake has been made by the referees, and that substantial justice requires it to be rectified, they have the power to set aside an award and direct a re-examination of the accounts. In this case, the referees themselves have declared that the matters laid before them ought to be re-considered ; and we therefore direct the report to be set aside, and that the accounts be again submitted to the same referees for reexamination.

[T. C. Pinckney, *Att'y for the plff.*T. Stevens, *Att'y for the def’t.]*