payment into Court, accepting the sum paid in, and praying judgment for his costs in that respect. At the trial, the jury found for the plaintiff on the plea of never indebted, to the extent of 101. beyond the sum paid into Court, and for the defendant on the plea of payment. The Master, on taxation, allowed the defendant all the costs of suit, deducting only the plaintiff's costs as to the issue on the plea of never indebted. A rule was obtained, and after argument made absolute, for reviewing the taxation, by disallowing the defendant all his costs anterior to the plea of payment of money into Court, so far as related to the cause of action to which that plea was pleaded, and allowing the plaintiff all his costs as to such causes of action up to and including the payment into Court. The rule of Hilary Term, 1853, therefore, as already stated, simply adopts the construction put by the Court in these cases on the provisions enabling a defendant to pay money into Court, and does not at all alter the law or practice with regard to the costs of an issue raised on the replication, alleging that the sum paid into Court is insufficient to satisfy the claim of the plaintiff in respect of the whole of the causes of action. If that issue is found for the defendant, the plaintiff is not entitled to any costs whatever in respect of it. It is true, that Mr. Justice Patteson, in delivering judgment in Rumbelow v. Whalley, hinted that it might be right to alter the rule of Trinity Term, 1 Vict., then in force, and give the plaintiff his costs, at all events up to the time of payment of money into Court, so far as related to the causes of action in respect of which it is paid in; but the Common Law Procedure Act has embodied, without alteration, the precise language of the above-mentioned rule, and the rule of Hilary Term, 1853, has not interfered with it. It is necessary to explain this, as it has been erroneously supposed that the rule carried into effect the suggestion of Mr. Justice Patteson. It seems that if the plaintiff proceed after the defendant has paid money into Court, the Court will before trial allow him to take it out with costs to the time of paying it in, on paying the defendant his subsequent costs (a). Thus, where the (a) Davis v. Mansell, Willes, R. 191. defendant paid money into Court and the plaintiff replied damages ultra, but did not proceed to trial, and the defendant having obtained a rule for judgment as in case of a nonsuit (according to the then practice), the Court, on finding that the plaintiff was now desirous of accepting the money paid into Court, discharged the rule on the plaintiff undertaking to amend his replication and pay the defendant all the costs incurred subsequently to the payment of the money into Court (a). On the other hand, if a plaintiff discontinues the action after having refused to accept the money paid into Court, he is not entitled to any costs, even to the time of paying the money into Court (b): so if the defendant obtains judgment as in case of a nonsuit (c), or judgment of non pros. (d). In these cases the judgment is the same in its consequences as if the party had proceeded to trial, and the defendant had obtained judgment upon nonsuit or verdict. If in these instances the plaintiff had, before the rule for judgment was made absolute, elected to accept the money instead of waiting for an adverse judgment, he would have been permitted to do so, and to tax his costs down to the time the money was paid into Court, on his paying the subsequent costs (e). It follows from this that a plaintiff should never allow a judgment as in case of a nonsuit (or what is now the corresponding judgment), to be obtained against him; but if after proceeding with the cause, he declines to go to trial, he should, if there is any reason to believe the defendant will proceed to judgment, anticipate the defendant's rule by applying for leave to accept the money on the above terms. If, at the trial of a cause in which money has been paid into Court, a juror be withdrawn, each party pays his own costs as in other cases (ƒ). (a) Kelly v. Flint, 5 Dowl. 293. 196. (e) Crosby v. Olorenshaw, 2. M. & Sel. 335, overruling Seamour v. Bridge, 8 T. R. 408. (d) Postle v. Beckington, 6 Taunt. 158. (e) See per Bayley, J., Crosby v. Olorenshaw, supra. (f) Stodhart v. Johnson, 3 T. R. 657. In a cause standing for trial, the plaintiffs at the assizes obtained leave to amend by striking out the names of some of the defendants on payment of costs, the remaining defendants having liberty to plead de novo. The Master allowed the defendants whose names were struck out their entire costs of the cause, and the remaining defendants the costs of the day only. The latter defendants afterwards paid money into Court, which was accepted by the plaintiffs in discharge of the action. The Master taxed the plaintiffs their costs of the cause, but not allowing them the costs incurred subsequent to the former pleas of the defendants; and it was held that he was right in so doing, because it must be assumed that if the plaintiffs had originally sued only the right defendants, they would have pleaded payment into Court at once, and so the costs of the former pleas and subsequent proceedings would not have been incurred. It was also held, that the defendants were entitled to be allowed the costs of their former pleas and of the subsequent proceedings, upon the ground that they would have succeeded at the trial on account of the joinder of the other defendants, and that the Master could not have allowed them these costs on the former taxation, because at that time neither had the defendants pleaded payment into Court, nor had the plaintiffs accepted the money paid in, and therefore it could not be known what costs, beyond those of the day, which were allowed, had been uselessly incurred (a). So also, where, after a cause had been made a remanet, the plaintiff obtained leave to amend his declaration and particulars on payment of costs; and the defendant, being at liberty to plead de novo to the amended declaration, paid money into Court, which the plaintiff took out: it was held that the plaintiff was only entitled to the costs of the pleadings as amended, and of taking the money out of Court, but not to the costs of the prior issue, nor the preparation for trial, costs of the record, briefs, or witnesses (b). Mr. Baron Parke observed in that case, that "the plaintiff, by amending, admits that he (a) Jackson v. Nunn, 4 Q. B. 209. See this case noticed ante, p. 102. (b) Wilton v. Snook, 12 M. & W. 805; 1 D. & L. 964; 13 L. J. (N. S.), Exch. 236, S. C. has no case to go to trial with, and it would be wrong to allow him to charge the defendant with the expenses of preparing to prove a case which he has abandoned. After the cause is made a remanet, he alters his case and puts it upon a different footing; the defendant admits that he has no answer to that case, and consequently pays money into Court. No issue is raised upon that; then how can he be entitled to of proceedings which are not applicable to the present state of the record? He is clearly not entitled to the costs of preparing for the trial.” the costs By the 13th of the Practice Rules of Hilary Term, 1853, "where money is paid into Court in several actions which are consolidated, and the plaintiff, without taxing costs, proceeds to trial in one, and fails, he shall be entitled to costs on the others up to the time of paying money into Court." If the plaintiff in an action of contract accepts the sum paid into Court, and it is less than 207., or 57. in an action of tort (where money can be paid into Court), the plaintiff, it seems, would be deprived of his costs under the 13 & 14 Vict. c. 61, unless he obtains the order of the Court, or of a Judge at chambers, under the 13th section of that Act (a). So, if in an action of trespass or on the case, where the defendant pays money into Court and the plaintiff replies damages ultra, the plaintiff recovers less than 40s., he is not entitled to costs without a certificate, under the 3 & 4 Vict. c. 24 (b). The effect of this decision is, that the plaintiff in an action of trespass or on the case might be deprived of 398. of the amount of damages to which he is justly entitled, by the defendant paying into Court the damages minus that sum. But as the damages claimed in an action of trespass or on the case are unliquidated, the defendant cannot calculate with certainty what amount the jury will give, and therefore it is only in rare and exceptional cases that the decision can operate harshly on the plaintiff. (a) See ante, Chap. IX. (b) Reid v. Ashby, 22 L. J., C. P. 215. X CHAPTER XXIX. OF COSTS UPON THE PAYMENT OF MONEY INTO COURT AFTER A TENDER, OR AFTER A SUMMONS TO STAY PROCEEDINGS ON PAYMENT OF DEBT AND COSTS. SECT. 1. Of the Effect on Costs of a Tender of the Debt. SECT. 2. Of the Effect on Costs of a Summons to stay Proceedings on Payment of Debt and Costs. SECT. 1. Of the Effect on Costs of a Tender of the Debt. THE preceding chapter shows the effect on costs of a plea of payment into Court in ordinary circumstances, but to render this part of the subject complete, it is necessary to allude to the plea of tender and to the effect of a summons, before declaration to stay further proceedings on payment of the debt and costs. Where a defendant pleads a tender before action, either to the whole or part of the declaration, the amount alleged to have been tendered must be paid into Court. If the plaintiff confesses the plea, he is entitled to take the money out of Court, but the defendant is entitled to his costs in the same manner as he would be on any other plea confessed by the plaintiff. If, on the other hand, the plaintiff denies the tender, or, admitting the fact of the tender, alleges that more was due to him, he may still take the money out of Court, for he is entitled to that at all events, but the costs of the issue raised on the plea of tender will follow the result, just as in the case of any other issue. It follows that there is this important distinction, with respect to costs, between a simple plea of payment into Court and a plea of tender accompanied by a payment of that sum into Court; namely, that while in the latter case, if the plea |