termand, whereby the defendant is entitled to judgment as in case of a nonsuit;(m) or though the plaintiff afterwards enter the record for trial, and withdraw it.(n) But the plaintiff is not entitled to costs, up to the time of bringing money into court, after the defendant has obtained judgment as in case of a nonsuit,(0) or judgment of non pros for not entering the issue,(p) or after a juror has been withdrawn by consent.(q) In the Exchequer, the plaintiff is entitled to costs, up to the time of bringing money into court, although he has made default in trying the cause, after a peremptory undertaking;(r) And he may take the money out of court, without an application for that purpose; and by so doing, all further proceedings are stayed.(r) [ *628 ] *In the King's Bench, where the defendants, in several actions on a policy of assurance, 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 the costs in any of the actions, up to the time of paying money into court. (a) But in actions on policies, in the Common Pleas, where there is a consolidation rule, and money paid into court, although the cause tried follows the general practice, and the defendant, if he succeed, is entitled to the whole costs of that cause, yet the plaintiff is entitled to the costs of the short causes, up to the time of paying the money into court.(b) So, in the King's Bench, where the defendants in several actions on a policy of insurance, paid money into court, and (the plaintiffs refusing to consent to a consolidation rule) obtained a rule for staying proceedings in the others, until after the trial of one, upon the terms of their admitting their subscription to the policy, the interest of the plaintiffs, &c. and afterwards judgment passed for the defendant in the cause tried; the court held, that the plaintiffs were entitled, in the other actions to costs, to the time of paying money into court.(c) Where the defendant, having paid money into court generally, upon a declaration containing a count on a policy of assurance, together with the money counts, obtained a rule after verdict, to amend the rule for paying money into court, by confining it to the money counts, and for a new trial, on payment of costs; the court of King's Bench held, that the plaintiff on taking the money out of court, was entitled to all the costs of the action, and not merely to the usual costs on a rule for a new trial.(d) And, in the Common Pleas, where in an action on a policy, with (0) 2 Maule & Sel. 335. (b) 2 Taunt. 361; and see 2 Bos. & Pul. 56, 3 Bos. & Pul. 558, accord. (c) 6 Maule & Sel. 107. is paid into court after issue joined, and the plaintiff proceeds in the suit, but recovers no more than the amount paid in, the defendant is entitled to the costs of the defence subsequent to the payment of the money, but not to the costs previously accrued. Aikins v. Colton, 3 Wend. 326. Money paid into court, not in pursuance of a tender made before the suit is brought, must, to be available, include the costs in the suit up to that time. Goslin v. Hodson, 24 Verm. 140. The acceptance of money paid into court, operates as a payment, pro tanto, and also as a conclusive admission of the conditions upon which it was paid into court. Ib. A party cannot make the payment of money into court available, unless it be done under an order of court, and upon the payment of all costs up to the time of bringing the money into court. Keith v. Smith, 1 Swan, (Tenn.) 92. Harvey v. Hackley, 6 Watts, 264. the usual money counts, the defendant paid the premiums into court, on the count for money had and received, and the plaintiff took it out, there being no consolidation rule, the latter was holden to be entitled to his full costs on all the counts, although he had failed on the special counts, in another action on the same policy.(e) In the Common Pleas, if the plaintiff die,(f) or be nonsuited,(g) after money is brought into court, the court will not order it to be paid back to the defendant. So, if the defendant die after bringing money into court, it shall not be paid back to his executors.(h) But where the bail, upon putting off a trial, had paid a sum of money into court, to abide the event of the suit, and the suit having afterwards abated by the death of the defendant, they were permitted to take the money out of court, although it was opposed both by the plaintiff, and by the administrator of the defendant.(?) And if the plaintiff have a verdict against him, after money is brought into *court, the court will order it to be paid out to the defendant, [ *629] towards satisfaction of his costs. (a) [A] It had been a question often agitated in that court, whether in cases where there was a rule to pay money into court, the production of it by the defendant was to be considered as evidence on his part, which gave the plaintiff's counsel a right to reply: If the plaintiff took a verdict for the whole of his demand, without giving credit for the sum paid into court, the court would set it aside, without requiring evidence of the existence of such a rule: and therefore a rule was made, that in future this should not be considered as evidence on the part of the defendant, so as to give the plaintiff a right to reply.(b)[1] (e) 5 Taunt. 607. (f) Cas. Pr. C. P. 129. Pr. Reg. 255, Barnes, 281, S. C. (g) Cas. Pr. C. P. 36. Pr. Reg. 250, S. C., and see id. 252. (h) Barnes, 279. Pr. Reg. 252, S. C. (i) Ward v. Lowring, M. 45, Geo. III. K. B. 2 Smith R. 49, S. C. (a) Cas. Pr. C. P. 54. Pr. Reg. 251, S. C. Barnes, 280. (b) 2 Taunt. 267, 1 Car. & P. 21, n. [1] The practice on the subject of paying money into court has been materially improved in England by a recent statute. By the provisions of the law amendment act, 3 & 4 W. IV. c. 42, 21; and see 2 Rep. C. L. Com. 52, 97; "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 superior courts of law at Westminster, 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 the pleading, as the said judges, or any eight or more of them, of whom the chief of each of the said courts shall be three, shall, by any rules or orders by them to be from time to time made, order and direct." By the above act, the defendant may pay money into court, in many cases where he was not formerly allowed to do so, as in actions for general damages, not being for assault and battery, or false imprisonment, &c. But in an action by landlord against tenant, for not repairing, the court refused to allow the defendant to pay a sum of money into court, by way of compensation and amends, under the above statute; and that the same sum might be received into court, under a plea in the form given by the rule made thereon, and under a plea of tender before action brought; Searle v. Barrett, 4 Nev. & M. 200. Dearle v. Barrett, 2 Ad. & E. 82. Barret v. Dearle, 3 Dowl. Rep. 13. 9 Leg. Obs. 108, 206, S. C. In pursuance of the power given by the above act, a statutory rule was made by the judges [A] Where money has been paid into court by the defendant, and the plaintiff dies and his administrator is substituted, who does not appear and is nonsuited, the money will be impounded to answer the defendant's costs. Jenkins v. Cutchens, 2 Miles, 65. And after payment of money into court, the defendant can never take it out; yet if the plaintiff fails in his action, as by nonsuit on motion, and the money has not a lready been taken out of court by him, the court will impound it to answer the defendant's costs. Jenkins v. Cutchins, 2 Miles, 65. Payment into court, under a plea of tender, by one of several joint defendants, is a payment for all, and the money may be impounded in such case, for cost of all. Ibid. *CHAPTER XXVI. Of PLEAS to the JURISDICTION; CLAIMING CONUSANCE; and PLEAS in THE general order of Pleading is, I. To the JURISDICTION of the Court. II. To the PERSON, 1. Of the Plaintiff: 2. Of the Defendant. III. To the COUNT. IV. To the WRIT; and herein, 1. To the Form: 2. To the Action of the Writ. V. To the ACTION itself, in bar thereof.(a) (a) Co. Lit. 303, Latch, 178. Gilb. C. P. 49, and see Steph. Pl. 429, 30. And for an account of the various kinds of pleas in Equity, and their essential difference, see Beam. Pl. Eq. Chap. II. of all the courts; R. Pl. Gen. H. 4 W. IV. reg. 17, 18. 5 Barn. & Ad. Append. vi. 10 Bing. 468. 2 Cromp. & M. 18, by which it was ordered, that "when money is paid into court, such payment shall be pleaded in all cases, and as near as may be in the form prescribed by the rule." Besides that it was thought much more convenient, as well as more consistent with the real state of facts, that payment of money into court should be put into the shape of a plea, other advantages are gained by putting it into that shape, namely, that the expense of a rule of court, and of proving such rule at the trial, is avoided; that a specific issue will arise as to the sufficiency of the sum; and that the admission of the plaintiff's right of action, and the extent of that admission, will appear on the record; a circumstance which will be found peculiarly beneficial in actions of trespass to land; 2 Rep. C. L. Com. 54, 5. If it be intended to defend part of the action, and to pay money into court as to other part, the plea or pleas to the part defended should be pleaded first, and the payment into court should be pleaded as to the residue; Sharman v. Stevenson, 1 Gale, 74. 5 Tyr. Rep. 564. 3 Dowl. Rep. 709. 2 Cromp. M. & R. 75. 10 Leg. Obs. 315, S. C. And where, to a declaration for 317. on a bill of exchange, and 1007. for money paid, money lent, goods sold, interest, and on an account stated, the defendant pleaded as to the 317., and as to 127. parcel of the 1001. for goods sold, and as to the 1007. on the account stated, payment into court of 511. and alleged that the plaintiff had not sustained damages to a greater amount, in respect of so much of those causes of action as in the plea mentioned, it was doubted whether such plea was good, on special demurrer: and it seems that the defendant ought to have shown distinctly, what portion of the money paid into court was to be applied to the bill of exchange; Jourdain v. Johnson, 2 Cromp., M. & R. 564. 5 Tyr. Rep. 524. 1 Gale, 312. 4 Dowl. Rep. 534, S. C.; and see Marshall v. Whiteside, 1 Meeson & W. 191, 2. 1 Tyr. & G. 485. 4 Dowl. Rep. 770, S. C. And it has been holden, that a plea of payment of money into court, beginning as to so much, parcel" &c., and concluding without any prayer of judgment, is bad, on special demurrer; Sharman v. Stevenson, 1 Gale, 74; and see Porter v. Izat, 1 Tyr. & G. 639. 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; Marshall v. Whiteside, 1 Meeson & W. 188. 1 Tyr. & G. 485. 4 Dowl. Rep. 766, S. C.; and see Mee v. Tomlinson, 5 Nev. & M. 624. 1 Har. & W. 614, S. C. Lorymer v. Vizeu, 3 Bing. N. R. 222. But where, upon a declaration consisting of two counts, the defendant paid into court enough to cover the demand in the first, and obtained a verdict on the second, but had omitted to plead the payment, as required by the new rules, the court held that he was not entitled to costs; Adlard v. Booth, 1 Bing. N. R. 693. 1 Scott, 644, S. C. The practice of paying money into court, however, is now governed by the law amendment act, and the statutory rules made thereon; by one of which rules, R. Pl. Gen. H. 4 W. IV. reg. 18; 5 Barn. & Ad. Append. vi., 10 Bing. 468; it is ordered, that "no rule or judge's order to pay money into court shall be necessary, except under the 3 & 4 W. IV. c. 42, § 21; but the money shall be paid to the proper officer of each court, who shall give a receipt or the amount in the margin of the plea, and the said sum shall be paid out to the plaintiff By this order of pleading, each subsequent plea admits the former: as, when the defendant pleads to the person, he admits the jurisdiction of the court; when he pleads to the count, he admits the competency of the plaintiff, and his own responsibility; when he pleads to the form of the writ, he admits the form of the count; (b) and in like manner of the rest. (b) Gilb. C. P. 50. on demand." By this rule it is unnecessary to have any rule or order for paying money into court, in cases where it was allowed before the law amendment act. In such cases it is to be paid to the proper officer, as a matter of course, without any rule or order for that purpose, in like manner as upon a plea of tender. Tidd, Sup. 1830, p. 18. But in cases where the payment of money into court was first allowed by the law amendment act, as in actions for general damages, &c., a rule of court or judge's order must be obtained for leave to pay it in: And the payment of money into court must in all cases be pleaded, even though it be paid in under a rule of court or judge's order. By a rule of all the courts, R. Pl. H. 4 W. IV. reg. 19; 5 Barn. & Ad. Append. vi. vii.; 10 Bing. 468, 69; 2 Cromp. & M. 19; made in pursuance of the law amendment act, "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 is indebted to him, as the case may be,) to a greater amount than the said sum; (for the form of a replication to a plea of payment of money into court, see 6 Car. & P. 712, (a); 1 Chit. Pl. 371, 72; and see Proctor v. Nicholson, 7 Car. & P. 67; Jourdain v. Johnson, 2 Cromp. M. & R. 564; 5 Tyr. Rep. 524; 1 Gale, 312; 4 Dowl. Rep. 534, S. C.; Marshall v. Whiteside, 1 Meeson & W. 191, 92;) 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." If the defendant pay money into court, as to part of the plaintiff's demand, and plead non assumpsit, or nunquam indebitatus, or a set-off, or other plea, as to the residue, the plaintiff may take the money out of court, in satisfaction of the cause of action in respect of which it was paid in, and take issue, and proceed to trial, on the other plea: But where, to a declaration in assumpsit, brought to recover the sum of 301., the defendant pleaded, first, to the whole declaration, payment of the sum of 271. 48. 4d. into court, and that the plaintiff had not sustained damages to a greater amount; secondly, except as to 271. 4s. 4d. non assumpsit; thirdly, payment of the sum of 107. before action; and fourthly, as to all except 271. 48. 4d., a set-off; to which the plaintiff replied that he accepted the sum paid into court, and was satisfied, the court held that the defendant was not justified in signing judgment of non pros, for want of a replication to the second, third, and fourth pleas. Coutes v. Stevens, 2 Cromp. M. & R. 118. 5 Tyr. Rep. 764. 3 Dowl. Rep. 784. 1 Gale, 75, S. C. In an action on the case for an injury to the plaintiff's reversionary interest in a wharf, by breaking a wall, the defendant having pleaded not guilty to the whole declaration, and a special plea of justification, and the plaintiff having new assigned, the defendant paid money into court, which was accepted in satisfaction of the cause of action, the court held that the plaintiff was entitled to the costs of the writ, and the defendant to all other costs prior to the new assignment. Griffiths v. Jones, 5 Dowl. Rep. 167. 1 Meeson & W. 731, S. C. 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 nonsuit to be discharged, on his amending his replication, by accepting the money in satisfaction of the cause of action, and paying the defendant's costs, incurred since the payment of the money into court. Kelly v. Flint, 13 Leg. Obs. 94. In an action against a carrier, for not delivering goods at a specified time, the defendant pleaded payment of money into court, and the plaintiff replied that he had sustained more damages; the amount paid in was the cost price of the goods, the defendant having offered them in specie to the plaintiff two days only after they ought to have been delivered; but the plaintiff proved that he had sustained inconvenience and loss, by not having the goods delivered at a proper time; the jury, however, found for the defendant, and the court refused to set aside the verdict. Evans v. Lewis, 3 Dowl. Rep. 819. 10 Leg. Obs. 332, S. C. If the defendant, to a declaration in the ordinary form, in indebitatus assumpsit, with particulars containing various causes of action, plead payment into court, he is not precluded by his plea, from contesting his liability in respect of any items beyond the amount paid into court; the particulars not being considered as part of the declaration. Booth v. Howard, 5 Dowl. Rep. 438. 1 Willmore, W. & D. 54, S. C. *CHAPTER XXVI. Of PLEAS to the JURISDICTION; CLAIMING CONUSANCE; and PLEAS in ABATEMENT. THE general order of Pleading is, I. To the JURISDICTION of the Court. II. To the PERSON, 1. Of the Plaintiff: 2. Of the Defendant. III. To the COUNT. IV. To the WRIT; and herein, 1. To the Form: 2. To the Action of the Writ. V. To the ACTION itself, in bar thereof.(a) (a) Co. Lit. 303, Latch, 178. Gilb. C. P. 49, and see Steph. Pl. 429, 30. And for an account of the various kinds of pleas in Equity, and their essential difference, see Beam. Pl. Eq. Chap. II. of all the courts; R. Pl. Gen. H. 4 W. IV. reg. 17, 18. 5 Barn. & Ad. Append. vi. 10 Bing. 468. 2 Cromp. & M. 18, by which it was ordered, that "when money is paid into court, such payment shall be pleaded in all cases, and as near as may be in the form prescribed by the rule." Besides that it was thought much more convenient, as well as more consistent with the real state of facts, that payment of money into court should be put into the shape of a plea, other advantages are gained by putting it into that shape, namely, that the expense of a rule of court, and of proving such rule at the trial, is avoided; that a specific issue will arise as to the sufficiency of the sum; and that the admission of the plaintiff's right of action, and the extent of that admission, will appear on the record; a circumstance which will be found peculiarly beneficial in actions of trespass to land; 2 Rep. C. L. Com. 54, 5. If it be intended to defend part of the action, and to pay money into court as to other part, the plea or pleas to the part defended should be pleaded first, and the payment into court should be pleaded as to the residue; Sharman v. Stevenson, 1 Gale, 74. 5 Tyr. Rep. 564. 3 Dowl. Rep. 709. 2 Cromp. M. & R. 75. 10 Leg. Obs. 315, S. C. And where, to a declaration for 317. on a bill of exchange, and 1007. for money paid, money lent, goods sold, interest, and on an account stated, the defendant pleaded as to the 317., and as to 127. parcel of the 1001. for goods sold, and as to the 1007. on the account stated, payment into court of 511. and alleged that the plaintiff had not sustained damages to a greater amount, in respect of so much of those causes of action as in the plea mentioned, it was doubted whether such ples was good, on special demurrer: and it seems that the defendant ought to have shown distinctly, what portion of the money paid into court was to be applied to the bill of exchange; Jourdain v. Johnson, 2 Cromp., M. & R.564. 5 Tyr. Rep. 524. 1 Gale, 312. 4 Dowl. Rep. 534, S. C.; and see Marshall v. Whiteside, 1 Meeson & W. 191, 2. 1 Tyr. & G. 485. 4 Dowl. Rep. 770, S. C. And it has been holden, that a plea of payment of money into court, beginning "as to so much, parcel" &c., and concluding without any prayer of judgment, is bad, on special demurrer; Sharman v. Stevenson, 1 Gale, 74; and see Porter v. Izat, 1 Tyr. & G. 639. 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; Marshall v. Whiteside, 1 Meeson & W. 188. 1 Tyr. & G. 485. 4 Dowl. Rep. 766, S. C.; and see Mee v. Tomlinson, 5 Nev. & M. 624. 1 Har. & W. 614, S. C. Lorymer v. Vizeu, 3 Bing. N. R. 222. But where, upon a declaration consisting of two counts, the defendant paid into court enough to cover the demand in the first, and obtained a verdict on the second, but had omitted to plead the payment, as required by the new rules, the court held that he was not entitled to costs; Adlard v. Booth, 1 Bing. N. Ř. 693. 1 Scott, 644, S. C. The practice of paying money into court, however, is now governed by the law amendment act, and the statutory rules made thereon; by one of which rules, R. Pl. Gen. H. 4 W. IV. reg. 18; 5 Barn. & Ad. Append. vi., 10 Bing. 468; it is ordered, that "no rule or judge's order to pay money into court shall be necessary, except under the 3 & 4 W. IV. c. 42, 21; but the money shall be paid to the proper officer of each court, who shall give a receipt or the amount in the margin of the plea, and the said sum shall be paid out to the plaintiff |