BOOK IV.
PART I.

Costs, where several Ac

tions are consolidated.

When allowed to be paid in without Costs.

nonsuit to be discharged, on his amending his replication by accepting the money in satisfaction of the cause of action, and paying the costs incurred by the defendant since the payment of the money into court (). If the money have been paid in on one count only of the declaration, the plaintiff (if he accept of the money so paid in) will be entitled to the costs of that count only, and not of the others (a); and if the money be paid into court on any one count, which may be applicable to the plaintiff's demand, and the plaintiff has no further demand, he will, it seems, proceed at his peril of costs on the other counts, notwithstanding they may be also applicable to the demand (b). If the plaintiff proceed to trial and obtain a verdict, he will be entitled to costs as in ordinary cases; but if the verdict be given against him, the defendant will be entitled to the costs (c). If a juror be withdrawn (d), or if plaintiff after proceeding in the action discontinue (e), or be nonsuit (ƒ), or even if the defendant obtain judgment of nonpros or judgment as in case of a nonsuit (g); the plaintiff will be liable to costs

as in other cases.

Formerly in the Queen's Bench, where the defendants in several actions on a policy of insurance paid money into court which the plaintiff took out without taxing costs at that time, and afterwards the defendants entered into the common consolidation rule, and the plaintiff was nonsuited in the action that was tried, the court held, that the latter was not entitled to costs in any of the actions up to the time of paying money into court (h). But, in the Common Pleas, where there was a consolidation rule, and money paid into court, although the cause tried followed the general practice, and the defendant, if he succeeded, was entitled to the whole costs of that cause; yet the plaintiff was entitled to the costs of the short causes, up to the time when the money was paid in (2). And now by a general rule of all the courts of H. T., 2 W. 4, r. 1, s. 104,—“Where money is paid into court in several actions which are consolidated, and the plaintiff, without taxing costs, proceeds to trial on one, and fails, he shall be entitled to costs on the others, up to the time of paying money into court."

Under special circumstances, perhaps, the court or a judge may allow the money to be paid into court without the defendant's being liable to costs. In a case in the King's Bench, before the above rules of H. T., 4 W. 4, although it appeared that a certain sum had been offered to the plaintiff before declaration, and refused, yet the court would not allow the defendant to pay that sum of money into court after declaration, upon the terms of the plaintiff's being obliged to relinquish the costs of the declaration if he afterwards took the

(2) Kelly v. Flint, 5 Dowl. 293.

(a) Baillie v. Gezelet, 4 T. R. 579: Skarratt v. Vaughan, 2 Taunt. 266.

(b) Early v. Bowman, 1 B. & Ad. 889: Churchill v. Day, 3 M. & Ry. 71.

(c) See R. H., I V., ante, 974. See
Stevenson v. Yorke, 4 T. R. 10: Griffiths
v. Williams, 1 T. R. 710: Stevenson v.
Yorke, 4 T. R. 10; 1 Saund. 33 c.

(d) Stodhart v. Johnson, 3 T. R. 657.
(e) Berwick v. Symonds, Say. 196.

(f) Rabell v. Hudson, 4 T. R. 10.

(g) Crosby v. Olorenshaw, 2 M. & Sel. 335: Postle v. Beckington, 6 Taunt. 1.58: but see Seamour v. Bridge, 8 T. R. 408: Lorck v. Wright, Id. 486.

(h) Burstall v. Horner, 7 T. R. 372: see Powell v. Parkinson, 6 M. & Selw. 107: Tidd's New Pract. 317.

(i) Twemlow v. Brock, 2 Taunt. 361: and see Wilton v. Place, 2 B. & P. 56: Muller v. Hartshorne, 3 B. & P. 558.

money out; they said that the defendant should have tendered the money and pleaded the tender(j). But where the conduct of the plaintiff appeared to have been oppressive, and that the defendant was willing and offered to pay the money before action brought, the court, before the above rule of H. T., 4 W. 4, upon application of the defendant, (even after he had paid the money into court), ordered, that so much of the rule then in practice as obliged him to pay costs, should be discharged (k). And where an action was brought for two separate sums of money, and the defendant, having offered to pay the amount of one of them, with costs up to that time, which was refused by the plaintiff, paid the amount into court, but the plaintiff afterwards finding that he could not maintain his action as to the second sum, took the money out of court, and proceeded no further: the court, upon application, allowed the defendant his costs from the date of his offer to pay the sum afterwards paid into court, and directed these costs to be deducted from the costs of the plaintiff (7). And in another case, the defendant obtained a judge's summons to stay proceedings, upon payment of a certain sum and costs; but the plaintiff claiming more than the sum offered, no order was made, and the action proceeded; the defendant afterwards paid the same sum into court, and the plaintiff thereupon took the money out and discontinued the action: the court, upon application of the defendant, allowed the plaintiff his costs only up to the time of his attendance upon the summons, and ordered the costs subsequently incurred by the defendant, and the costs of the application, to be deducted from them, even, although it appeared that the plaintiff was induced from poverty to accept the money paid into court, and relinquish his action for the balance (m). Where, in a country cause, the defendant took out a summons before declaration, to stay proceedings upon payment of a less sum than the plaintiff's demand and costs, upon which no order was made, and the defendant afterwards paid that sum into court, which the plaintiff's agent, having, in the meantime, consulted his principal in the country, took out of court, it was holden, that the plaintiff, not having been guilty of fraud or vexation, was entitled to costs up to the time at which he took the money out of court (n). Where an order was made for the defendant to pay four guineas into court, but the plaintiff's agent refused to tax the costs under that order, the Court of Exchequer permitted the defendant to pay the money into court without being liable to the costs (o). Where a defendant in a case before the R. H., 4 W. 4, r. 17, and R. H., 1 V., paid into court 17. 3s. 7d., under an order which did not contain the usual undertaking

(5) Burmester v. Hilch, 13 East, 551: see Pr. Reg. 258: Gibbon v. Copeman, 5 Taunt. 840: but sre Zewin v. Cowell, 2 Taunt. 203: Roberts v. Lambert, Id. 283. (k) Johnson v. Houlditch, 1 Burr. 578: and see Hale v. Baker, 2 Dowl. 125.

(James v. Raggett, 2 B. & Ald. 776; 1 Chit. Rep. 471, S. C.: Parsons v. Pitcher, 4 Bing. N. C. 306; 6 Dowl. 432, S. C.. and see Marryott v. Clapp, 1 Dowl. 701: Jones v. Owen, 2 C. & J. 476; 1 Dowl.

565, S. C. It seems that the court will
not interfere to give the defendant his
costs unless the case has been previously
before the master. (Roe v. Cobham, 6
Dowl. 628).

(m) MS., T. 1825: Hale v. Baker, 2
Dowl. 125: semble, overruling Edwards v.
Harrison, 11 Price, 533: and see Jones v.
Owen, note (p), p. 978.

(n) Haworth v. Holgate, 2 Y. & J. 257.
(0) Anon., T. T. 1832, Jervis's Rules, 75.

CHAP. IX

PART I.

BOOK IV. from the defendant to pay the costs, and it being doubtful whether the plaintiff, if he accepted that sum, would be entitled to costs, the defendant offered to give the plaintiff judgment of the term for that sum, in order to take the opinion of the court upon the question; the plaintiff, notwithstanding, took the cause to trial, and, upon the production of rule to pay money into court, had a verdict for one shilling; the Court of Exchequer, upon motion, ordered the plaintiff to pay to the defendant all costs incurred subsequently to the offer (p).

Defendant

may take AdCourt of Requests Acts.

vantage of

Effect of it as

an Admission

By paying money into court, the defendant is not, it seems, precluded from the benefit of the Court of Requests Acts (9). Where, however, in an action to recover a sum of 87. 28., (as claimed by the particulars of demand), the defendant paid 17. 18s. into court, under the rule of H. T., 4 W. 4, r. 19, which the plaintiff took out, in full satisfaction of the action, the cause of action arose, and the parties lived within the jurisdiction of the county court of Cardiganshire; and by order of a judge, the defendant was allowed to enter a suggestion on the roll of these facts, and that the action was brought for a sum under 40s., and further proceedings were stayed, with a view of depriving the plaintiff of his costs; the court set aside the order, on account of the form of the rule for paying money into court, the lateness of the application, and it not clearly appearing that the action was brought for less than forty shillings (r).

Effect of it as an Admission of the Cause of Action, &c.] By of the Cause paying money into court, on the whole of a special declaraof Action, &c. tion, or on the special counts, the defendant impliedly (s) admits the contract as declared on, and all the breaches on which it is paid in (t); and the only remaining question to be determined is the amount of the damages. By paying money into court on the common indebitatus counts, the defendant, in ordinary cases, admits no more than that the sum paid in is due to plaintiff, by virtue of some contract of the nature declared on; but it does not admit his liability on any particular contract on which the plaintiff may choose to rely (u); and it seems paying money into court on several counts, one of which only is applicable to the plaintiff's demand, admits a cause of action on that count only(x). As instances of what the payment admits, if money be paid into court on a count on a bill of exchange, there is no necessity to prove the defendant's handwriting (y), and the sufficiency of the stamp is thereby

(p) Jones v. Owen, Exch. T. T. 1832, Jervis's Rules, 75; 1 Dowl. 565; 2 C. & J. 476, S. C.

(q) Turner v. Barnard, 5 Dowl. 170; 1 H. & W. 580, S. C.

(r) Farrant v. Morgan, 3 Dowl. 792; 2 C., M. & R. 252; 5 Tyr. Rep. 790; 1 Gale, 156, S. C.

(8) Burrough v. Skinner, 5 Burr. 2640: Guillod v. Nock, 1 Esp. 347: Seaton v. Benedict, 5 Bing. 28; 2 Moo. & P. 66, S. C.: see Boyfield v. Porter, 13 East, 202: Leggett v. Cooper, 2 Stark. 103: Everth v. Bell, 7 Taunt. 450: Stafford v. Clarke, 2 Bing. 377; 9 Moore, 724, S. C.

(t) Wright v. Goddard, 8 Ad. & EL 144; 3 Nev. & P. 361, S. C.. Hingham (or Kingham) v. Robins, 7 Dowl. 352; 5 M. & W. 94, S. C., per Parke, B.

(u) Hingham (or Kingham) v. Robins, 7 Dowl. 352; 5 M. & W. 94, S. C.: overruling Walker v. Rawson, 1 M. & Rob. 250; and the dicta of Purke and Littledate, JJ., in Meager v. Smith, 4 B. & Ad. 673: see Seaton v. Benedict, 5 Bing. 28; 2 Moo. & P. 66, S. C.

(x) Stafford v. Clarke, 2 Bing. 377: 9 Moore, 724: 1 C. & P. 703, S. C.: Everth v. Bell, 7 Taunt. 450; 1 Moore, 158, S. C. y) Gutteridge v. Smith, 2 H. BL. 374.

But

admitted(): so, if paid in an action of covenant, the execution
of the deed is admitted (a); so, if paid in on a count on a
guarantee, it admits an agreement signed according to the
Statute of Frauds (b); so, if paid in one entire contract, it
admits the contract, though it would be otherwise if the con-
tract were not entire (c); so, where two breaches are assigned
in one count, payment into court on one of the breaches is an
admission of the whole contract as set out in that count, so as
to enable the plaintiff to recover on the second breach without
proof of the contract (d). Where the declaration states a
contract to pay a particular sum of money for certain articles,
payment of part of the money into court on the special
count, by admitting the contract, admits also the sum ori-
ginally due; and the only question is, whether the remainder
of the money had been previously paid (e). And in an
action for goods sold by sample at a stipulated price, the
payment of money into court therein precludes the defend-
ant from insisting on the inferiority of the goods (ƒ).
where the declaration is for goods sold, to be paid for at
the average price, to be ascertained on a day specified, pay-
ment into court does not, if stated under a videlicet, admit
the average price to be as stated in the declaration (g).
And in an action for an attorney's bill, the defendant after
payment into court may shew that the work was to be done
for costs out of pocket, and not for an attorney's accustomed
fees and charges (h). Nor does the payment into court on
a count on a valued policy, in which the loss is averred to
be total, admit of a total loss (i). In an action for goods
sold and delivered, it admits a contract, though the goods
were tortiously converted by the defendant (j). But it is
not such an admission as precludes the defendant from tak-
ing an objection to the legality of the contract, in order
to prevent the plaintiff from recovering beyond the sum paid
in(); and if the declaration contain a legal and an illegal
demand, the money paid in shall be applied to the legal de-
mand only (7). Payment of money into court, in an action
upon the statute of Ed. 6, precludes the defendant from ob-
jecting to the plaintiff's title (m). In an action on a policy
of insurance, the court, under particular circumstances,
(where the plaintiff misled the defendant, and induced him
to suppose that the only point to be tried is a question of
fraud, &c.), allowed the defendant to give evidence of fraud
notwithstanding he had paid money into court (n). It is a
conclusive admission, in an indivisible claim, of the plaintiff's

(2) Israel v. Benjamin, 3 Camp. 40. (a) Randel v. Lynch, 2 Camp. 357. (b) Middleton v. Brewer, Peake, 15. (e) See Meager v. Smith, 4 B. & Ad. 673; 1 Nev. & M. 449, S. C.

(d) Dyer v. Ashton, 1 B. & Cres. 3; 2 D. & R. 19, S. C.

(e) Cav. Brain, 3 Taunt. 95. (f) Leggett v. Cooper, 2 Stark. 103. (g) Storeid v. Brewin, 2 B. & Ald. 116: and see Everth v. Bell, 7 Taunt. 450; 1 Moore, 158, S. C.: Lechmere v. Fietcher, 1 C. & M. 623.

(h) Jones v. Reade, 1 Nev. & P. 18; 5 Dowl 216, S. C.

CHAP. IX.

BOOK IV. PART I.

Plaintiff,

when entitled to nominal Damages, though other Issues found

against him.

Action for malicious

right to sue in the court in which the action is brought (o); and of his right to sue in the character in which he sues (p); but not of his right to sue alone without joining another party (q); also of the action not being brought too soon (r). But it is no admission of the plaintiff's right of action beyond the sum paid into court (s); and consequently, in a divisible claim, does not deprive the defendant of the benefit of the Statute of Limitations as to the residue of the plaintiff's demand (t). And if the declaration be on an indebitatus as sumpsit, with particulars containing various causes of action, payment into court does not preclude the defendant from contesting his liability in respect of any items beyond the amount paid in, the particulars not being considered as part of the declaration (u).

It should be observed, however, that where payment into court is pleaded, together with other pleas, each issue, as in other cases, must be tried by itself; and consequently, where the plaintiff replies damages ultra, and succeeds on that issue, although the defendant succeeds on all the other pleas, yet, unless the pleas on which he succeeds cover the entire cause of action, to which payment into court is not pleaded, the plaintiff will be entitled to a verdict for nominal damages on that plea (x); but if the issue found for the defendant goes to the entire cause of action, to which the payment into court is not pleaded, the admission in that plea will not entitle the plaintiff to have a verdict entered for him on the other issue (y).

If the plaintiff take the money out of court, and it amount Arrest after. to less than the sum stated in the affidavit to hold to bail, the plaintiff does not, it would seem, thereby subject himself to an action for a malicious arrest (z).

Plaintiff may be Nonsuit

after.

Arrest of
Judgment.

Money cannot

be taken out

The plaintiff may be nonsuit after payment of money into court (a); but it is doubtful whether the defendant can demur to evidence after it (b).

It seems the defendant cannot move in arrest of judgment for a defect in a breach, in respect of which he has paid money into court (c).

By the payment of money into court the defendant concluby Defendant, sively admits the plaintiff's right to it, and it can never afterwards be taken out, it seems, under any circumstances by him or his representatives, even though the plaintiff or defendant die in the course of the suit, or the plaintiff be nonsuit, or recover less than the amount paid in, or even although

(0) Miller v. Williams, 5 Esp. 19.

(p) Lipscombe v. Holmes, 2 Camp. 441. (q) Hingham (or Kingham) v. Robins, 7 Dowl. 352; 5 M. & W.94, S C.: overruling Walker v. Rawson, 1 M. & Rob. 250: see Ravenscroft v. Wise, 1 C., M. & R. 203; 2 Dowl. 676, S. C.

(r) Harrison v. Douglas, 3 Ad. & El.

396.

(s) 2 Esp. Rep. 482, n.: Blackburne v. Schoales, 2 Camp. 341: Rucker v. Palsgrave, 1 Taunt. 419: Everth v. Bell, 7 Id. 450: Stoveld v. Brewin, 2 B. & Ald. 116.

(t) Long v. Greville, 4 D. & R. 632; 3 B. & Cres. 10, S. C.. Reid v. Dickons, 5 B. & Ad. 499.

(u) Booth v. Howard, 5 Dowl. 438; 1 W. W. & D. 54, S. C.: see Hingham (or Kingham) v. Robins, 7 Dowl. 352; 5 M. & W. 94. S. C.

(z) Fisher v. Aide, 3 M. & W. 486.

(y) Tremlow v. Askey, 3 M. & W. 495. (z) Jackson v. Burleigh, 3 Esp. 34: see Hildyard v. Blowers, 5 Esp. 69: Butler v. Brown, 1 B. & B. 66; 3 Moore, 327, S. C.: but see Laidlow v. Cockburn, 2 New Rep. 76.

(a) Ante, Vol. I. 313.

(b) Jenkins v. Tucker, 1 H. Bl. 93. (c) Wright v. Goddard, 8 Ad. & El. 144; 3 Nev. & P. 361, S. C.