it was paid in by mistake (d). But the court may, if the CHAP. IX. plaintiff failed in his action, and the money has not been already taken out of court by him, impound it to answer the defendant's costs (e).

ply.

Payment of money into court did not, it seems, when paid Right to Rein before the 3 & 4 W. 4, c. 42, entitle the plaintiff to reply at the trial (ƒ).

der.

Payment of Money into Court upon a Plea of Tender.] If Payment of Money into you intend to plead a tender, pay the money tendered into court, Court upon a in the manner directed ante, 972, 973, and get a receipt for it Plea of Tenin the margin of the plea, from the master &c. A tender and refusal may be pleaded to an avowry or cognizance for rent or damage feasant, without bringing the money into court; for, if the distress be not rightfully taken, the defendant must answer to the plaintiff his damages (g); and it may be pleaded in this way to an action for an involuntary trespass (h), or in actions against magistrates (i), or excise or customs officers (j).

out.

After paying money into court on a plea of tender, the How taken defendant can never take it out, even although he have a verdict (k). But the plaintiff may take it out, whether he confess or deny the tender in his replication (1). The plaintiff had better confess the tender if it was a legal one, and the evidence that it was made be clear.

Money.

If the defendant plead a tender without paying the money Effect of not into court, the plea, as far as it respects the tender, may be ing in the treated as a nullity; and the plaintiff may sign judgment for the amount of the tender pleaded (m).

Payment of Money into Court in lieu of Bail.] As to this, see Payment of ante, Vol. I. 613.

(d) Vaughan v. Barnes, 2 B. & P. 392: Malcolm v. Fullerton, 2 T. R. 645: see Ward v. Lowring, 2 Smith, 49: Knapton v. Drew, Barnes, 279: Crockay v. Martin, Id. 281: Vane v. Michell, Id. 284: Elliott v. Callow, 2 Salk. 597.

(e) See Anon., Barnes, 280: and see Green v. Coughlan, 1 Jones, Rep. Exch. Ir. 283.

(f) See R. H., 15 Geo. 3, C. P.: 2 Taunt. 267.

(g) Gilb. Rep. 83, 179.

(A) 3 Chit. Pl. 6th ed. 975.

(i) Id. 974: ante, 912, 913.

(j) Id. 973: ante, 912, 913: see Bulwer v.

Horne, 4 B. & Ad. 132; 1 Nev. & M. 117,
S. C., in which it was held, that, if the
tender were pleaded only to a particular
count, the rule for paying the money into
court on it should express that it was
upon that count only, otherwise it would
have the same effect as a rule for payment
of money into court without the plea of
tender. Now, however, in such a case
there is no occasion for any rule or order
to pay the money into court.

(k) Cor v. Robinson, 2 Str. 1027.
(1) Le Grew v. Cooke, 1 B. & P. 333.
(m) Vol. I. 169.

Money into Court in lieu of Bail.

CHAPTER X.

BOOK IV.
PART I.

Upon Pay

indorsed on

Writ and

Costs.

Upon Payment of Sum indorsed on Writ and Costs.] IN an action for the recovery of a debt, we have seen (ante, Vol. I. ment of Sum 111) that the copy of the process served must be indorsed with the amount of such debt, and of what the plaintiff's attorney claims for the costs of such process, arrest, or service and attendance to receive debt and costs; and upon payment of such amount, within four days, to the plaintiff or his attorney, further proceedings will be stayed; the defendant having the liberty of afterwards getting the costs taxed, and if taxed at one-sixth less than stated on the copy of the process, the plaintiff's attorney will have to pay the costs of taxation (a). The payment of this amount, within the four days, will of itself operate as a stay of further proceedings. After that time, if the defendant dispute neither the cause of action nor the amount of the debt, he may, in the cases mentioned infra, stay further proceedings, by applying to a judge by summons, and obtaining his order for such stay of proceedings upon payment of the debt and costs. The defendant would not, on failing to pay the debt and costs within the four days, be entitled to a stay of proceedings on payment of the sum indorsed. The proceedings would only be stayed on payment of the debt and costs, assuming the debt to be more than the sum indorsed (b). Where the defendant, after the service of a writ of summons, paid the debt surreptitiously to the plaintiff's clerk, without costs, and the plaintiff's attorney, with a view to recover his costs, proceeded to deliver a declaration, the Court of Common Pleas ordered the proceeding to be stayed on payment of the costs of the writ of sum

(a) R. H., 2 W. 4, r. 2: see Ward v. Gregg, 5 Dowl. 729.

(b) Bowditch v. Slaney, 4 Dowl. 140; 9 Scott, 197; 2 Bing. N. C. 142, S. C.

mons(c). Where the attorney demanded and obtained from defendant 58. more than the sum marked on the writ, it was held that this 58. could not be added to the sum taxed off, so as to entitle the defendant to costs (d).

CHAP. X.

&c., and Costs

Upon payment of Debt, &c., and Costs where the Amount is not disputed.] It may be laid down as a general rule, that the de- Upon Payfendant will be allowed to stay proceedings upon payment of ment of Debt, debt and costs, in all cases where at common law he may pay where the money into court. This is, however, a matter of favour to the Amount is not disputed. defendant, and not of right; and therefore the court or a judge, in allowing it, may impose on the defendant such reasonable terms as they think proper (e). And, for the same reason, the court or a judge cannot, without the plaintiff's consent, allow the defendant a longer time for the payment than he would be entitled to by law (f).

Demand.

on the same

In assumpsit for a money demand, the defendant may have the proceedings stayed upon payment of the sum demanded In Assumpsit and costs (g). Where several actions are brought against the for a Money acceptor and indorsers of a bill of exchange, any of the parties, Where sebefore judgment, may obtain a judge's order for a stay of the veral Actions proceedings on payment of the debt and costs in the action Bill of Exagainst him, or, after judgment obtained in the action against change, &c. him, may prevent execution from being sued out thereon, upon payment of the debt and costs (h). Formerly the acceptor of a bill of exchange, or the maker of a promissory note, could not obtain a stay of proceedings before judgment, except upon the terms of paying, not only the debt and costs in the action against him, but also the costs in all the other actions against the indorsers, &c. But now, by rule of all the courts of T. T., 1 V., "it is ordered that, in future, in any action against an acceptor of a bill of exchange, or the maker of a promissory note, the defendant shall be at liberty to stay proceedings, on payment of the debt and costs in that action only." Even before that rule, where there was an attachment against the sheriff in an action against the acceptor, the sheriff might have been relieved on payment of the costs of that action only (i). And where, after the acceptor had offered to pay the debt and the costs of the action against himself, the plaintiff, who was an attorney and indorsee of the bill, brought another action against the drawer, who was his own client, the court stayed the proceedings upon payment of the debt and the costs of one action only (j). And the principle upon which this case was decided has been since acted on in several cases, where several actions have been brought against several real or fictitious parties to the bill, evidently for vexation and costs. If the bill has been paid by one of the other parties, the acceptor, if he contests his liability, may compel the plaintiff to proceed in the action; and where, in such a case,

(c) Wylie v. Phillips, 3 Bing. N. C. 776.
(d) Ward v. Gregg, 5 Dowl. 729.
(e) Jones v. Shepherd, 3 Dowl. 421.
(f) Kirby v. Ellison, 2 Dowl. 219; 2 C.
& M. 315; 4 Tyrw. 239. S. C.

(g) Gibbon v. Copeman, 5 Taunt 840.
(A) Smith v. Woodcock, 4 T. R. 691: per

Lord Tenterden, in Dawson v. Morgan, 9
B & Cres. 620: and see per Parke, B., in
Jones v. Shepherd, 3 Dowl. 421.

(i) Rex v. Sheriff's of London, 2 B & Ald.
192: Ball v. Blackwood, 6 Dowl. 589.
(j) Hodson v. Gunn, 2 D. & R. 57.

BOOK IV. the plaintiff obtained a judge's order to stay proceedings, without costs, the court set aside the order(k).

PART I.

In Debt.

So, in debt on simple contract, the proceedings may be stayed on payment of debt and costs. So, in debt for rent (?). So, in debt on bond in a penal sum, conditioned for the payment of a less sum, the defendant may bring into the court the principal and interest(m), and also, it seems, such costs as have been expended in any suit in law or equity concerning the same (n), which shall be deemed and taken to be in full satisfaction and discharge of the said bond (o). So, in debt on bond conditioned for the payment of an annuity, or of money by instalments, the defendant may obtain a stay of proceedings, upon payment of the arrears and costs, provided he give the plaintiff judgment in the action as a security for the future payments (p), but not otherwise (q); but where the bond was conditioned for the payment of a sum in gross, and by a subsequent agreement that sum was to be paid by instalments, the court would not stay proceedings on the bond upon payment of the instalment, but required the defendant to pay in the whole sum mentioned in the condition of the bond, with costs (r); and the same where it was expressly stated in the bond that the whole sum should become due upon default made in the payment of any one instalment (8). In these cases the application is for a rule to shew cause why it should not be referred to one of the masters to compute the principal and interest due upon the bond (as the case may be); and why, upon payment of such sum with costs to be taxed, &c., the proceedings in the action should not be stayed. So, in debt on bond conditioned to perform covenants, or for the performance of any specific act, the defendant may obtain a stay of proceedings upon payment of the penalty of the bond and costs(t). So, in debt on bond conditioned for the payment of mortgage money, or for the performance of covenants in a mortgage deed, where no suit for foreclosure or redemption is depending, a payment to the mortgagee, or, in case of his refusal, a payment into court, of principal and interest due on the mortgage, and costs, shall be deemed to be in full satisfaction of the mortgage, and the court shall discharge the mortgagor of and from the same accordingly (u). As to staying proceedings in debt on replevin-bond, see ante, 812. As to staying proceedings in debt on bail-bond, see Vol. I. 568. As to staying proceedings against bail upon their recognisance, see Vol. I. 618, &c. So, in debt on judgment, the court will stay proceedings, upon payment of the sum recovered by the judg

(k) Lewis v. Dalrymple, 3 Dowl. 433.

(1) Lee v. Irish, Hardw. 173.

(m) See Farquhar v. Morris, 7 T. R. 124: Hogan v. Page, 1 B. & P. 337. It seems that both principal and interest must be brought in, though the principal be payable on a future day, and the breach be only in payment of interest. (See Vansandau v., 1 B. & Ald. 214).

(n) Locke v. Shermer, Hardw. 116: sed vide Sisney y. Nevinson, 2 Str. 699.

(0) 4 & 5 A. c. 16, s. 13. See Bonafous v. Rybot, 3 Burr. 1373: Lord Lonsdale v. Church, 2 T. R. 388: Wilde v. Clarkson, 6 T. R. 303.

(p) Darby v. Wilkins, 2 Str. 957: Bridges v. Williamson, Id. 814: Bonafous v. Robot, 3 Burr. 1370.

(q) Vansandau v. ——, 1 B. & Ald. 214: Tighe v. Crafter, 2 Taunt. 387: see Steel v. Bradfield, 4 Taunt. 227: Macdonald v. Pasely, 1 B. & P. 161.

(r) Bonafous v. Rybot, 3 Burr. 1374.
(8) Gowlett v. Hanforth, 2 W. Bi, 958.
(t) Ante, 725.

(u) 7 G. 2, e. 20, s. 1. See Goodritle d. Taysom v. Pope, 7 T. R. 186: Berthen v. Street, 8 Id. 326: Skinner v. Stacy, 1 Wils. 80: and ante, 755, 775.

ment and costs (x). So, in debt on statute for a penalty CHAP. x. (unless perhaps a qui tam action) the proceedings may be stayed upon payment of the penalty and costs (y); or if the action be for several penalties, the defendant may have the proceedings upon one or more of the counts stayed, upon paying into court the penalties claimed in such counts, and allowing the plaintiff to proceed upon the other counts if he wish it (z).

So, in covenant, where the breach assigned is the non-pay- In Covenant. ment of money, proceedings may be stayed, upon payment

of the amount claimed and costs.

Case.

On the other hand, in trespass and case, the court or judge In Trespass or will not, in general, stay the proceedings, upon payment of a sum of money and costs, not even in the action of trespass for mesne profits; because the damages in these cases cannot be ascertained without the intervention of a jury, and they will rarely, if ever, do so where there is any uncertainty as to the amount of value on damages (a): and, where a sheriff sold goods under a fi. fa. without paying the rent due to the landlord, the court refused to stay proceedings in an action by the landlord on payment of the sum for which the goods were sold into court, or to bind the plaintiff to pay costs in case of his not recovering more than the sum paid into court (b). Yet, in one case, under particular circumstances, the court ordered the proceedings to be stayed in an action of trespass, upon the defendant's restoring the goods seized, or paying the full value of them, with costs (c). (See further, post, 988, 989.) In trover, for money, the court or a judge will stay the In Trover. proceedings, perhaps, upon payment of such sum with interest and costs, if there be no circumstances in the case calculated to enhance the damages beyond the mere interest. So, in trover for a specific chattel, when the chattel is of an ascertained quantity and quality, and unattended with any circumstances that can enhance the damages above the real value, the court or a judge will allow such chattel to be brought into court, or will order it to be delivered to the plaintiff, and let him afterwards proceed in the action at his peril as to costs, in the same manner as upon payment of money into court (d): or perhaps they would grant a rule, calling upon the plaintiff to shew cause why, upon delivery to him of the goods in question, and upon payment of costs, all proceedings in the action should not be stayed (e). Where trover was brought for title-deeds, and a writ of inquiry executed, the court permitted satisfaction to be entered on the roll, upon

(r) See Simpson v. Stone, 2 W. Bl. 785: Thomas v. Edwards, 2 Anst, 558.

(9) Webb v. Punter, 2 Str. 1217: Stock v. Eagle, 2 W. Bl. 1052: and see Rer v. Strong, 1 Burr. 431.

(2) Tidd. 9th ed. 511.

(a) See Cairert v. Joliffe, 2 B. & Ad. 418, per Littledale, J.: Gibson v. Humphry, ? Dowl. 68: Squire v. Archer, 2 Str.906: Bowles v. Fuller, 7 T. R. 335: Holdfast v. Morris, 2 Wils. 115: Bernasconi v. Fairbrother, 7 B. & Cres. 379.

(b) Calvert v. Joliffe, 2 B. & Ad. 418. (e) Pickering v. Truste, 7 T. R. 53: and see per Bayley, B., 2 Dowl. 69.

(d) Rer v. Clarke, 3 Burr. 1364; Ca. Pr. C. B. 59: Pickering v. Truste, 7 T. R. 53: see Catling v. Bowling, Say. 80: Harding v. Wilkin, Id. 120: Bowington v. Parry, 2 Str. 822: Olivant v. Perineau, Id. 1191: Olivant v. Berino, 1 Wils. 23: Earl v. Holdernesse, 4 Bing. 462; 1 Moo. & P. 254, S. C.: West v. Taunton, 4 Moo. & P.79: 6 Bing. 408, S. C.: Lucas v. London Dock Com any, 4 B. & Ad. 378: and see form of rule there, Id. 380.

(e) Ca. Pr., C. B. 130: Tidd. Pract., 9th ed. 945: and see Phillips v. Hayward, 3 Dowl. 362.