Symonds against Craw

Symonds against Craw. A plaintiff ^reae¿6 aa 0 his common counts only, leaving him to proceed upon his special count, for not furnishing a bill of par* ticulars. Furnishing a bill of particulars after a regular notice of a motion for judgment of non pros, for not delivering one pursuant to a judge’s order, is an answer to the application, provided the costs be paid up to that timo ; but not otherwise. E. Griffin, for the defendant, moved for judgment of non pros, for not delivering a bill of particulars pursuant to an order. The declaration contained one special count with the general counts; and the order was founded upon, ■ and related to the latter. After this motion was noticed the plaintiff furnished a bill, but did not pay the costs. J. Steele opposed the application, insisting that the plaintiff could not he non prossed as to a part of the counts. Besides, he said, a hill had been furnished; and, in either view, the motion must fail. [MAJORITY — Curia.] Curia. We think differently. The motion must be granted as to the common counts, unless the plaintiff pay the costs of this application within thirty days. Furnishing a hill of particulars after notice given, would have been an answer to the present application, had the costs of the motion been paid up to the time of the bill furnished. Rule accordingly: