I. RELATIVE TO WHEN ALLOWED. BY 3 & 4 Will. 4, c. 42, s. 21, it is enacted, "That it shall be lawful for the defendant in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant), by leave of any of the said superior courts where such action is pending, or a Judge of any of the said superior courts, to pay into court a sum of money by way of compensation or amends, in such manner and under such regulations as to the payment of costs and the form of pleading as the said Judges, or such eight or more of them as aforesaid, shall, by any rules or orders by them to be from time to time made, order and direct." As to Libel and Slander, see stat. 6 & 7 Vict. BARRETT V. DEARLE, M. T. 1834. K. B. 3 D. P. C. 13; S. C. 2 Ad. & E. 82; S. C. 4 N. & M. 200. THE Court refused to allow, in an action by a landlord against tenant for breach of contract to repair, the defendant to pay into court, under 3 & 4 Will. 4, c. 42, s. 21, a sum as compensation and amends, and that it might be received into court under a plea of tender before action brought, such plea being bad in a case of unliquidated damages. sum of 58. (which was paid into court), and at the trial proved payment to the amount of 297. 17s. 3d., and a set-off to the amount of 167. 10s. 7d. :-Held, that the defendant was not entitled to have a verdict entered for him on those pleas for the amount proved. (Kilner v. Bailey, M. T. 1837, Ex., 5 M. & W. 382). * An action for damages, occasioned by the negligently running down the plaintiff's boat by the defendant's vessel, is not an action for a debt or demand within the meaning of the 3 & 4 Will. 4, c. 42, s. 17. (Watson v. Abbott, M. T. 1833, Ex., 2 C. & M. 150). So, in an action against a sheriff for a false return and for an excessive levy, and for not paying over the residue, the Court refused to allow the sheriff to pay money into Court with costs. (Woodgate v. Baldock, M. T. 1833, Ex., 2 D. P. C. 256). So, where a whole count applies to a demand for unliquidated damages, money cannot be paid into Court on a part of it. (Hodges v. Lord Litchfield, M. T. 1833, C. P., 2 D. P. C. 741). But, money may be paid into Court on one of several breaches of covenant contained in a lease set forth in the declaration, if the plaintiff's particular specifies the sum he claims on that breach. (Smith v. King, M.T. 1833, C. P., 2 D. P. C. 751). However in an action by landlord against tenant for not repairing, the Court refused to allow the defendant to pay money into court by way of compensation and amends, under the 3 & 4 Will. 4, c. 42, s. 21. (Serle v. Barrett, T. T. 1834, K. B., 4 N. & M. 200; S. C. 2 Ad. & E. 82). To a count on a bill of exchange or promissory note a defendant cannot pay a smaller sum into court and plead that he was never indebted to a smaller amount, but should shew a failure of consideration, or some other valid defence as to part, and then pay the residue into Court. (Armfield v. Burgin, H. T. 1840, Ex., 8 D. P. C. 247; S. C. 6 M. & W. 281). In an action of trespass, a Judge may make an order, before declaration, for the defendant to be at liberty to pay money into Court under 3 & 4 Will. 4, c. 42; and if the defendant pleads, that, "before the plaintiff declared," he paid into Court a sum of money by way of compensation, and avers that the plaintiff has not sustained damage to a greater, &c., on which the plaintiff takes issue, and then issue is found for the defendant, the Court will not grant a rule for judgment non obstante veredicto. (Edwards v. Price, E. T. 1838, B. C., 6 D. P. Č. 487). So, where a defendant was sued at law for a sum of money, and the Court The sum paid include interest II. RELATIVE TO THE AMOUNT TO BE PAID INTO KIDD v. WALKER, M. T. 1831. K. B. 2 B. & Ad. 705. In an action on a security bearing interest, the defendant paid into Court a sum equal to the debt and interest up to the time of the action brought, but not to that of paying in the money. The Court held, that the plaintiff was entitled to proceed in the action, and recover damages for the remaining interest. If the plea of payment of money into Court leaves any part un answered, it is demurrable+. III. RELATIVE TO THE PLEA OF PAYMENT OF MONEY ARMFIELD V. BURGIN, H. T. 1840. Ex. 6 M. & W. 281; S. C. 8 D. P. C. 247. IN debt for goods, &c., with a count on a bill accepted by the defendant, each count for 707., and concluding in the usual form with a demand of the aggregate amount in the several counts; plea, except as to 2017., parcel of the sum demanded, and for which credit was given by the plaintiff in his particulars, payment into Court of the sum of 131. 128, and that the defendant was indebted in no greater amount. The Court held the plea bad on special demurrer, in not shewing some answer as to part, and payment into Court as to residue. allowed him to pay it into Court, to abide the event of an application by him to the Court of Chancery for an injunction, which was accordingly made in January, 1834, but the plaintiff having absconded without entering an appearance, the defendant was unable to get an injunction on the merits, though he had got the common injunction, the Court refused to make an order that the defendant might receive the money out of Court, though a considerable time had elapsed since the bill was filed. (Best v. Argles, E. T. 1835, Ex., 3 D. P. C. 701). * A plea of payment of a less sum of money into Court on a general indebitatus count or counts is good, though the amount intended to be appropriated to each count is not shewn. (Jourdain v. Johnson, M.T. 1835, Ex., 4 D. P. C. 534; S. C. 5 Tyrw. 524). By Rule H. T., 2 Will. 4, “No rule or Judge's order to pay money into Court shall be necessary except under the 3 & 4 Will. 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." It is not a ground for arresting a judgment non obstante veredicto, that a plea on which a verdict has been found in favour of the defendant alleges money to have been paid into Court pursuant to 3 & 4 Will. 4, c. 42, s. 21, before declaration. (Edwards v. Price, E. T. 1838, B. C., 6 D. P. C. 487). 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 full satisfaction of all the counts or breaches. (Marshall v. Whiteside, H. T. 1836, Ex., 4 D. P. C. 766; S. C. 1 M. & W. 188). The Court refused to allow a plea of payment, without paying in the money, on the ground of the sum indorsed having been paid in in lieu of bail. (Ball v. Stafford, M. T. 1835, C. P., 4 D. P. C. 327; S. C. 2 Scott, 426). THOMPSON V. JACKSON, E. T. 1840. C. P. 8 D. P. C. 591; S. C. 1 Scott, N. S. 157; S. C. 1 M. & G. 242. ON a plea of payment of money into CourtThe Court held, that a plea of payment of money into Court under 3 & 4 Will. 4, c. 42, s. 1, and R. T. T. 1 Vict. Reg. 1, in bar of the further maintenance of the action, cannot be pleaded to the same cause of action to which other pleas are pleaded in denial of the existence of that cause of action at the time of action brought. SHARMAN v. STEVENSON, E. T. 1835. Ex. 2 C., M. & R. 75; PLEA of payment into Court (under the new Rules) of part, and no further damages sustained by plaintiff, concluding with a verification, and not with a prayer of judgment, as to further maintaining the action. The Court held the plea bad; such plea ought to be of the residue only; any defence as to a part of the causes of action ought to be first pleaded, and then payment into Court as to the residue. The plea cannot be pleaded to the same cause covered by other pleas. And should conclude with the prayer of judgment, and be the last plea*. IV. RELATIVE TO THE LEGAL EFFECT OF PAYING SEATON v. BENEDICT, T. T. 1828. C. P. 5 Bing. 31; S. C. 2 M. & P. 67.-S. P. DRAKE v. LEWIN, T. T. 1834. Ex. 4 Tyrw. 730. ON a question as to payment of money into CourtThe Court held, that payment into Court generally, where no special contract is stated, admits no more than that the sum paid is due; but where there is a special contract, the payment admits that contract. * Where a defendant has several defences to different parts of the plaintiff's demand, and intends to plead payment into Court as to other parts of the demand, he should first of all plead those pleas, and then the plea of payment of money into Court as to the residue only. (Coates v. Stevens, E. T. 1835, Ex., 3 D. P. C. 784; S. C. 2 C., M. & R. 118). + Semble, there is no difference between the effect of a plea of payment into Court and payment under the whole rule, with respect to admission of the liability. (Levy v. Walrond, M. T. 1836, C. P., 3 Bing. N. S. 841; S. C. 5 Scott, 52). Payment into Court on several general counts, one only of which was applicable to the plaintiff's demand:-Held, to admit a cause of action on that count only. (Stafford v. Clark, M. T. 1824, C. P., 2 Bing. 377; S. C. 1 C. & P. 24, 403). So, if in trover the declaration enumerate a great number of articles, and the defendant pay money into Court, and plead that the plaintiff has sustained no greater damages, the plaintiff must shew what articles the defendant has converted; and a declaration in trover being general, the defendant, by this plea, does not admit anything beyond his payment into Court; (Cook v. Hartle, 1838, N. P., 8 C. & P. 568); but in an action for use and occupation, payment of money into Court admits the contract, and therefore it is not open to him to contend that the plaintiff is without a title, or that another co-plaintiff Payment into Court admits the contract, if special, if not, only as to the sum paid in t. Hence, it is an admission of a BULWER v. HORNE, M. T. 1832. K. B. 1 N. & M. 117; S. C. 4 B. & Ad. 132.-S. P. WIGHT v. GODDARD, M. T. 1837. Q. B. 3 N. & P. 361; S. C. 8 Ad. & E. 144. THIS was an action of assumpsit against the proprietors of the Gloucester mail, for not carrying the plaintiff to Cheltenham, after cause of action booking a place, with the general indebitatus counts. The defendant pleaded non assumpsit, except as to one guinea, and, as to that, a tender. Payment of one guinea into Court generally in an action against a carrier. The Court held the payment an admission of the cause of action, declared upon specially. HINGHAM v. ROBINS, E. T. 1839. Ex. 7 D. P. C. 352; S. C. 5 M. & W. 94, questioning WALKER v. RAWSON, 1833. N. P. 5 C. & P. 486, and MEYER v. SMITH, H. T. 1833. K. B. 4 B. & Ad. 676. THE defendant pleaded payment of money into Court, to a declaration containing the indebitatus counts for use and occupation for goods and fixtures, and the money counts. The Court held this to amount to an admission only that so much was due on some one of the contracts stated to the extent paid in; and if the plaintiff fails to establish the contract alleged, he cannot recover; but such a plea to a special count would admit the contract therein stated. STAPLETON V. NOEL, H. T. 1840. Ex. 8 D. P. C. 196; S. C. 6 M. & W. 9. PLEA, payment into Court of 107., with a denial of damages. ultra, upon which the plaintiff joined issue. From the particulars of demand, it appeared that the action was brought to recover the sum of 507., due from the defendants jointly to the plaintiff for wharfage. Per Cur.-Under a plea of payment of money into Court, the should have joined in the action, although these facts may appear doubtful on the * A plea of payment into Court by two defendants, pleaded to one or more indebitatus counts, admits only that the plaintiff has a cause of action on one or more of the contracts declared on to the amount of the sum paid in. (Archer v. English, M. T. 1840, C. P., 9 D. P. C. 21; S. C. 1 Scott, N. S. 156; 1 M. & G. 873). Plea of payment of a sum into Court in assumpsit, on the indebitatus count: -Held, to operate as an admission only that the plaintiff is entitled to that ex. tent on some contract, but no evidence of a joint liability. (Archer v. English, M. T. 1840, C. P., 2 Scott, N. S. 126; S. C. 9 D. P. C. 12; S. P. Staple plaintiff must then prove affirmatively some contract on which both the defendants are liable, and to an extent beyond the sum paid into Court by them. V. RELATIVE TO TAKING THE MONEY OUT OF COURT. ton v. Noel, H. T. 1840, Ex., 8 D. P. C. 196; S. C. 6 M. & W. 9). In an If, in answer to a declaration in assumpsit, the defendant plead several pleas, which go to the whole cause of action in the declaration, except a specified sum, and, for another, plead payment into Court of a sum of money exceeding that recovered by the former pleas, with the averment, that the plaintiff has not sustained damages to a greater amount than the sum so paid in, on all of which issue is joined, and a verdict is given for the plaintiff on the fourth issue, he is entitled to a verdict for nominal damages on the whole declaration. (Fisher v. Aide, E. T. 1838, Ex., 6 D. P. C. 594; S. C. 3 M. & W. 486). Where money had been paid into Court in satisfaction of the cause of action, and there was a replication of damages ultra, and the plaintiff had not proceeded to trial pursuant to a peremptory undertaking, the Court permitted the plaintiff to accept the money paid into Court, upon paying the defendant the costs subsequent to such payment; (Kelly v. Flint, M. T. 1834, 5 D. P. C. 293); and where a defendant pleads payment of a certain sum of money into Court, and that the plaintiff has not sustained damages to a greater amount, the defendant may shew that the items in the plaintiff's demand above that sum were not due from himself. (Booth v. Howard, H. T. 1836, B. C., 4 D. P. C. 438). * Where a defendant was sued at law for a sum of money, and the Court allowed him to pay it into Court to abide the event of an application by him to the Court of Chancery for an injunction, which was accordingly made in January, 1834; but the plaintiff having absconded without entering an appearance, the defendant was unable to get an injunction on the merits, though he had got the common injunction, the Court of Exchequer refused to make an order that the defendant might receive the money out of Court, though a considerable time had elapsed since the bill was filed. (Best v. Argles, E. T. 1835, Ex., 3 D. P. C. 701). In assumpsit, the defendant pays money into Court, and the plaintiff agrees to take the money and his costs. The costs are taxed, and paid by the defendant, and received by the plaintiff. The plaintiff, altering his mind, does not take the money out of Court, and offers to return the costs, which the defendant refuses to take, the plaintiff discontinues the action, and the costs of the discontinuance are taxed, and paid to the defendant. These facts will not support a plea in another action for the same demand, alleging that the plaintiff received the money paid into Court, and the costs, in full discharge of the action. (Power v. Butcher, M. T. 1829, K. B., 5 M. & Ry. 327). In case of death, may be taken out by the plaintiff's representa tives*. |