mesne profits (q); nor in case (r); nor in trover or replevin; CHAP. IX. and in these cases the defendant's course is, to obtain a rule or order to pay in the money, as being within the 3 & 4 W. 4, c. 42. In trover, the court have in some cases allowed the defendant to bring into court the article for which the action was brought and costs. So, in ejectment they allow the defendant, and in replevin the plaintiff, to bring into court the amount of the rent, for the non-payment of which the ejectment is brought, or the distress was made, respectively. As in these cases, however, the parties pay in, not a part merely, but the entire sum alleged to be due, it will be more convenient to defer the consideration of them to the next Chapter, where we shall have to treat of the application to stay proceedings upon payment of debt and costs generally. In actions by executors or administrators, the defendant By Execumay pay money into court, as in ordinary cases (s). tors, &c. of Bankrupt. As to payment of money into court in actions by the assig- By Assignees nees of a bankrupt, when the defendant is sued within the time limited for the bankrupt to dispute the commission, &c., see stat. 6 G. 4, c. 16, s. 93 (t). Some statutory provisions expressly allow the payment of By Carriers. money into court in particular cases; thus, in actions against mail-coach contractors, stage-coach proprietors, or common carriers, for the loss of or injury to goods, the defendants may pay money into court as of course (u). Excise. In actions against justices of peace, or against officers of the By Justices or excise or customs, for anything done by them in the execution officers of of their respective duties, if they have not made a tender, or if they conceive the amends tendered to be insufficient, they may have leave to pay into court such sum of money as they shall think fit; and the same proceedings shall be thereupon had as in other cases of paying money into court (r). The Commissame privilege is given to commissioners of bankrupt, by stat. Bankrupts. 6 G. 4, c. 16, s. 43(x). sioners of tion. If there be two or more counts in a declaration, the de- As to Part of fendant may pay money into court upon one of them, and the Declaraplead it as in other cases (y). And it has been recently decided, that where there are several counts for several causes of action, or several breaches are assigned in covenant, the defendant may plead payment into court of one entire sum, in satisfaction of all the counts or breaches (2). And in a claim for unliquidated damages, it has been the practice to allow the defendant to plead payment into court, and in addition to any other plea to the whole claim (a); though the correctness of this practice may perhaps be doubted. The court, in a case decided before the rules of H. T., 4 W. 4, refused to allow money to be paid into court on part of a count, where the (q) Holdfast v. Morris, 2 Wils. 115. (r) White v. Woodhouse, 2 Str. 787: Squire v. Archer, Id. 906: Salt v. Salt, 8 T. R. 47: Bowles v. Fuller, 7 T. R. 335: Calvert v. Johffe, 2 B. & Ad. 418. (8) Crutchfield v. Scott, 2 Str. 796: Gregg's case, 2 Salk. 596: Bigland v. binson, 3 Id. 105. (f) Arch. Bkt. L. 259. (u) 11 G. 4, 1 W. 4, c. 68, s. 10. (*) See ante, 912, 913. (z) Arch. Bkt. p. 10. see Ro (y) See Baillie v. Gazelet, 4 T. R. 579: (2) Marshall v. Whiteside, 4 Dowl. 766; (a) See Atkinson v. Duckham, 4 Dowl. 327. BOOK IV. claim was for unliquidated damages (a). They also in another case refused to allow a defendant to pay money into court upon some of the counts of a declaration, and demur to the rest (b). PART I. By one of several Defendants. It seems questionable whether one of several defendants alone can as of course pay money into court. And the Court of Common Pleas refused, before the rules of H. T., 4 W. 4, to allow one of three defendants, who alone appeared, (one of the others having suffered judgment by default, and the other being outlawed), to pay money into court, even although he offered to pay all the costs up to that time (c). And it has been the practice since those rules to allow one of several defendants to pay money into court, unless under peculiar circumstances. It was held before the 3 & 4 W. 4, c. 42, that if the deMoney impro- fendant pay money into court, in a case where he is not allowed to do so, the plaintiff, by taking it out, would thereby waive the defect, and the effect of it will then be the same as if it had been paid in properly (d); but it may be questionable whether the same rule would now hold, since the payment must be specially pleaded, and the defect would appear on the face of the record. Taking out perly paid in. When paid in. Order for, when made. How paid in. When and how paid in.] The court or judge may make an order for payment of money into court under 3 & 4 W. 4, c. 42, s. 21, in an action ex delicto, by way of amends, at any time, even immediately after the writ issued (e). And, as a matter of course, money may be paid into court in ordinary cases at any time after declaration (f), and before plea pleaded; or after plea, upon obtaining a judge's order to withdraw the plea, in order to pay money into court and plead it (g). Money has been allowed to be paid into court even after granting a new trial (h), and after setting aside the execution of a writ of inquiry (¿). Where the money has been paid into court by leave of a judge before the time for pleading, the officer will write a receipt for it on the judge's order; and on the plea being afterwards brought to him, and the order produced with the receipt indorsed, he will transfer the receipt to the margin of the plea, in pursuance of R. H.. 4 W. 4, s. 18. By rule of all the courts of H. T., 4 W. 4, s. 18, “ No rule or judge's order to pay money into court shall be necessary, except under the 3 & 4 W. 4, c. 42, s. 21; but the money shall be paid to the proper officer of each court, who shall give a receipt for the amount in the margin of the plea, and the said sum shall be paid out to the plaintiff on demand." We have already considered in what cases money may be paid in as of course independent of that act, and in those cases by this rule no rule or order to pay the money in is requisite. In cases within that act, the rule or order must be obtained in the usual way by application to the court on motion, or by summons before a judge, usually the latter. As to when this order may be made, see ante, 972. Serve a copy of the rule or order on the plaintiff's attorney or (a) Hodges v. Lord Litchfield, 3 Moo. & (b) Pr. Reg. 256: 1 Sellon, 286. (f) See Edwards v. Price, Q. B., M. T. 1837; 1 Jurist, 866. (g) Griffithe v. Williams, 1 T. R. 710, 711: Tarlton v. Wragg, 2 Str. 1271. (h) Anon., 1 Tidd, 9th ed. 672. (i) Day v. Edwards, 1 Taunt. 491. agent. Prepare a plea of the intended payment into court, and get it signed by counsel (j). Take the money and plea to one of the masters, who will write a receipt in the margin of the plea(k); (or if the money has previously been paid in by leave of a judge, he will transfer the receipt from the order to the plea on producing the order with the receipt indorsed. Deliver the plea to the plaintiff's attorney or agent, as in ordinary cases. СНАР. ІХ. If interest be due, you should calculate it up to the time of Interest, how the payment into court, and not merely to the commencement reckoned. of the action(7). ditional Sum. If the defendant find that he has not paid in a sufficient Paying in adsum, the court or a judge will, in general, allow him to pay in a further sum upon payment of costs (m). Money paid When the defendant has previously paid money into court Transferring in lieu of bail, he may apply to have the sum paid in, or part in lieu of Bail. of it, considered as so much paid in on account of the cause of action, and the order for this purpose is said to be of course (n). But the Court of Common Pleas has refused to permit this, either in the case of a plea of tender, or of payment into court(0). Court. Plea of.] By rule of all the courts of T.T., 1 V., it is ordered, Plea of Payamongst other things, that the 17th of the general rules and ment into regulations made pursuant to the statute 3 & 4 W. 4, c. 42, s. 1, be repealed; and that in the place thereof, the following amended rule be substituted: viz.— by R. T., 1 "When money is paid into court, such payment shall be Form given pleaded in all cases, and as near as may be in the following v., and Deform, mutatis mutandis:— C. D. ats. A. B. The The defendant, by 66 day of A.D. his attorney [or, in person, &c.], says [or, in case it be pleaded as to part only, add, "as to £, being part of the sum in the declaration," or, count mentioned," or, "as to the residue of the sum of £"] that the plaintiff ought not further to maintain his action, because the defendant now brings into court the sum of £- ready to be paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages [or, in actions of debt, "that he never was indebted to the plaintiff"] to a greater amount than the said sum, &c. in respect of the cause of action in the declaration mentioned [or, "in the introductory part of this plea mentioned"]: and this he is ready to verify; wherefore he prays judgment if the plaintiff ought further to maintain his action thereof." Take care that the plea contains the receipt of the money by the officer in the margin, or the plaintiff may sign judgment as (m) But see Swan v. Freeman, Barnes, 282: Pr. Reg. 263, 252. (n) Price, New Prac. 304: see Hubbard v. Wilkinson, 8 B. & C. 496: but see Ball v. Stafford, 4 Dowl, 327. (0) Stultz v. Heneage, 10 Bing. 561; 4 Moo. & Scott, 472; 2 Dowl. 806, S. C.; and see Balls v. Stafford, 2 Scott, 426; 4 Dowl. 327: 1 Hodges, 316, S. C., where the Court of Common Pleas refused to allow money paid in in lieu of bail to be appropriated to a plea of payment. cisions as to. ᏢᎪᎥᎢ 1. 66 BOOK IV. for want of a plea. The plea should be pleaded within the same time, and delivered in the same manner, as other pleas. (See ante, Vol. I. 152, &c.) As it concludes with a verification, it should be signed by counsel. If the defendant omit to plead this plea, he can, it seems, derive no benefit as to costs from the payment into court (o), and such payment into court must now, in all cases, be specially pleaded. If the plea begin as to so much, parcel" &c., and conclude without any prayer of judgment, it is bad on special demurrer; also, if it is intended to defend part of the action, and to pay into court as to the other part, the plea or pleas in bar should be pleaded first, and the payment into court should be pleaded as to the residue (p). It is not a ground for judgment non obstante veredicto, and, it seems, not even a ground of demurrer, that the plea alleges the money to have been paid into court by leave of a judge before declaration (9). Replication and subsequent Proceedings. Replication and Subsequent Proceedings.] By R. T., 1 V. (r), "The plaintiff, after the delivery of a plea of payment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satisfaction and discharge of the cause of action in respect of which it has been paid in; and he shall be at liberty in that case to tax his costs of suit, and in case of non-payment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed: or the plaintiff may reply, that he has sustained damages,' [or, that the defendant was and is indebted to him,' as the case may be], to a greater amount than the said sum; and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit (s). cases. The plaintiff may, at all events, without prejudicing his case, at once take the money out of court, which he may obtain on producing to one of the masters the copy of the rule or order (if any) for paying it in, and the plea of payment, delivered in the cause. The plaintiff must reply within the time limited in ordinary If the plea of payment into court be to the whole declaration, and the plaintiff determines upon not accepting the money in satisfaction of his claim, he should reply that fact accordingly in the manner pointed out by the above rule, and make up the issue, and proceed to trial, &c., as in ordinary cases. If the plea be only to part of the declaration, and there be any other plea to the rest of it, and the plaintiff determines upon proceeding to trial upon the cause of action to which the plea of payment into court is not pleaded, he should reply that he accepts the money in satisfaction of that part of the cause of action to which it is paid in, (or, if he has sustained damages to a greater amount, then he should reply that fact), and he should reply to the other plea or pleas, and proceed to trial as in ordinary cases. If the plea of payment of money (0) Adlard v. Booth, 1 Bing. N. C., 693;1 Scott, 644, S. C. () Sharman v. Stevenson, 2 C., M. & (q) Edwards v. Price, 6 Dowl. 487. (8) This rule supersedes that of H. T., that "on payment of money into court, the defendant shall undertake by the rule to pay the costs, and, in case of non-payment, to suffer the plaintiff either to move for an attachment, on a proper demand and service of the rule, or to sign final judgment for nominal damages." And see the former practice, Tidd's New Pract. 315. See the forms, Chit. Forms, 581. into court be to the whole of the declaration, and the plaintiff CHAP. IX. determines upon accepting the money in satisfaction of the cause of action, he should reply that acceptance, and in that case he may at once proceed to a taxation of costs, and sign final judgment for them if not paid in forty-eight hours after taxation. If the plea be only to part of the declaration, and the plaintiff determines upon accepting the monies, and proceeding no further in the action, he should then reply the acceptance of the money in satisfaction to the part of the cause of action to which it is paid in, and enter a nolle prosequi to the rest, and proceed to a taxation, &c., as just pointed out. The nolle pro sequi need merely be inserted in the replication delivered. There is no occasion to enter it on any roll until the judgment-roll be carried in. There is now no occasion for the defendant to produce at the trial the rule for payment of money into court, as formerly (t). Costs on.] If the plea of payment into court be to the whole Costs on. declaration, and the plaintiff replies that he accepts it in satis- In general. faction of the cause of action, he will, in general, be entitled to his costs. If the plea be only to part of the declaration, and there be another plea or pleas to the rest, and the plaintiff is not willing to proceed further, he will then have to enter a nolle prosequi to that part of the cause of action to which the latter plea or pleas are pleaded, and be liable to the defendant's costs in respect of it. Where a defendant pleaded payment of money into court to the whole declaration, and also other pleas, it was held that the plaintiff might accept the sum paid in satisfaction of the whole cause of action, and tax his costs accordingly; and that, having done so, judgment of nonpros for want of a replication to the other pleas was irregular (u). But where payment into court was pleaded only to part, and there were other pleas to the rest, judgment of nonpros for want of a replication to the latter pleas was held to be regular(). Where the defendant pleads a special plea, and plaintiff new assigns, and defendant pays money into court on the new assignment, and plaintiff takes it out in satisfaction of the action, the plaintiff is entitled to the costs of the writ, the defendant to all other costs prior to the new assignment, and the plaintiff to all subsequent costs(x). The plaintiff may, it should seem, at any time before the trial, if he choose not to proceed further, obtain the costs up to the time of the defendant's paying the money into court; but if the defendant has incurred any subsequent costs, he must be allowed them (y). Where in an action for dilapidations the defendant having paid money into court, the plaintiff replied further damage, and having subsequently given a peremptory undertaking, pursuant to which, however, he did not go to trial, the court permitted a rule for judgment as in case of a (t) See the former practice. Israel v. Benjamin, 3 Camp. 41; 1 C. & P. 21, n. (u) Coates v. Sterens, 3 Dowl. 784; 5 Tyr. 764; 1 Gale 75; 2 C.. M. & R. 118, S. C. see Goodee v. Goldsmith, 5 Dowl. 283. (E) Topham v. Kidmore, 5 Dowl. 676: Ernest v. Standen, 3 M. & W. 497; 6 Dowl. 591, S. C. (x) Griffiths v. Jones, 1 M. & W. 731; 5 Dowl. 167, S. C. (y) Hartley v. Bateson, 1 T. R. 629: Griffiths v. Williams, Id. 710: Davis v. Mansell, Willes, 191: and see James v. Raggett, 2 B. & Ald. 776; 1 Chit. Rep. 471, S. C. |