CHAPTER VI. PAYMENT INTO COURT-DISCONTINUANCE-RAISING POINTS of Law. A defendant may not be confident that he can completely defeat the plaintiff's case, but he may at the same time feel convinced that the plaintiff claims more than he would obtain from any judge or jury. In such a case his usual course is to pay money into Court. This subject is dealt with by Order XXII., the first rule of which provides that: "Where any action is brought to recover a debt or damages, any defendant may, before or at the time of delivering his defence, or at any later time by leave of the Court, pay into Court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may, with a defence denying liability (except in actions or counterclaims for libel or slander), pay money into Court." The rule then goes on to provide that the money when so paid in, shall be subject to the provisions contained in rule 6 of the same order (1). 'Morally and practically," said Lord Coleridge in a case decided in 1889, "there is a difference between libel and other cases. Thus in an action for breach of contract, there is no reason why the defendant should not be at liberty to say: 'I never made the contract, but if I did, I say that forty shillings is enough to satisfy your claim.' But to permit a defendant, in cases where a question of character is involved, to say to the plaintiff: ‘take forty shillings, or go on with your action,' is practically a very different thing" (2). The defence must state the fact of payment, and also the claim or cause of action in satisfaction of which the payment is made, and if the defence sets up tender of money before (1) R. S. C., 1883, Order XXII. rr. 1, 6. Rule 1 also contains a proviso that in an action on a bond under the statute 8 & 9 Wm. 3, c. 11, payment into Court shall be admissible to particular breaches only, and not to the whole action: see Tuther v. Caralampi, 21 Q. B. D. 414; see also on the subject of payment into Court: M'Ilwraith v. Green, 14 Q. B. D. 766; The William Symington, 10 P. D. 1; Moon v. Dickenson, 38 W. R. 278. (2) Fleming v. Dollar, 23 Q. B. D. 391; Griffiths v. School Board of Ystradyfodwg, 24 Q. B. D. 307. action the sum alleged to have been tendered must be brought into Court. The plaintiff may accept the money so paid in satisfaction of his demand, and take the money out of Court accordingly, or he may refuse to accept it. Where money is paid into Court, with a denial of liability, it can only be dealt with subject to certain special and elaborate provisions, for which the reader is referred to Order XXII., r. 6 (1). Suppose now that some unforeseen doubt or difficulty should encounter any party in the course of an action, his course in that case is to take out a summons for directions under Order xxx., which provides that: "In every cause or matter one general summons for directions may be taken out at any time by any party with respect to the following matters and proceedings: particulars of claim, defence, or reply, statement of special case, discovery (including interrogatories), commissions and examinations of witnesses, mode of trial (including proceedings in lieu of demurrer, trial on motion for judgment, and reference), place of trial, and any other matter or proceeding in the cause or matter previous to trial." The summons is returnable in not less than four days, and directions may be given as to matters not expressly included in it, and if any other application is made which might have been included in the "general summons" for directions, the party in fault is to be mulcted in costs (2). Under the present practice the power of a plaintiff who has once set the machinery of the Court in motion to stop its course is much more limited than it was in former days; he is, in fact, much less dominus litis (to employ the technical phrase) than he used to be in the days before the Judicature Act. His rights in this respect are now governed by Order xxvI. (3), under which he may, at any time before receipt of the defence, or after receipt of it before taking any other proceeding in the action, except any interlocutory application, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw (1) See for the history of the law and practice as to payment into Court Wheeler v. The United Telephone Co., 13 Q. B. D. 597. As to the subject of payment in and out, and the mode of dealing with the funds in Court see Annual Practice, 1890, p. 459, et seq. (2) R. S. C. 1883, Order xxx. r. 2. It is doubtful whether this summons (3) See Spencer v. Watts, 23 Q. B. D. r. 4. Summons for direc tions. Discon tinuance. Raising points of law. any part of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn, but such discontinuance or withdrawal shall not be a defence to any subsequent action. Except in this way the plaintiff has now no power to withdraw the record or discontinue the action unless by leave of the Court, or with the consent of his adversary. The Court, however, has a general power "before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, to order the action to be discontinued, or any part of the alleged cause of complaint to be struck out," and there is a similar provision with regard to the position of the defendant. It has been decided that a notice in writing by the plaintiff's solicitor in the form, "We are instructed to proceed no further with the action," is a sufficient notice of discontinuance (1). The general rule is that the party who discontinues pays the costs of the action (2). If any subsequent action is brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may order a stay of such subsequent action, until such costs shall have been paid. In many cases which come before the Courts for its adjudication, there is no issue of fact between the parties, and the only point which requires to be determined is a question of law. Special provision has been made by the rules for dealing with cases of this description. In the days before the Judicature Act, points of law were raised by demurrer. This term, which occurs not unfrequently in the older reports, was derived from the Latin demorari through the Norman French and signified that the party demurring declined to proceed with the pleadings because his opponent's statement was insufficient and that he arrested the judgment of the Court. The party demurring in fact said, " Admitting the truth of all that my opponent alleges, I submit to the Court that he has no case in law" (3). Demurrers are now abolished, but any party may raise by his pleading any point of law, which shall then be disposed of by the judge who tries the cause at or after the trial, but by con (1) The Pomerania, 4 P. D. 195. costs, Windham V. Bainton, 21 (3) Daniell's Chancery Practice, 6th edit. 525. sent of the parties or by order of the Court on the application of either party, the point of law so raised may be set down for hearing and disposed of at any time be'ore the trial (1). If in the opinion of the Court the decision of the point of law substantially disposes of the whole action or any distinct part, the Court may dismiss the action or make such other order as may be just (2). case. Another mode in which questions of law may be disposed Special of, is also provided by the Judicature Rules which provide that the parties to any cause or matter may, if they please, concur in stating the questions of law arising therein in the form of a "special case " for the opinion of the Court (3). Every such special case must be divided into paragraphs numbered consecutively, and must concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of the case the Court and the parties are at liberty to refer to the whole contents of such documents; and the Court is at liberty to draw from the facts and documents stated in any such special case "any inference, whether of fact or law, which might have been drawn there from if proved at a trial." If it appear to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed. No objection can be taken to any action or proceeding on the ground that it merely asks the Court to declare rights without seeking any consequential relief (*). (') R. S. C. Order xxv., r. 2. (2) R. S. C. Order xxv. r. 3. See as to the practice: O'Brien v. Tyssen, 28 Ch. D. 372; Percival v. Dunn, 29 Ch. D. 128; Caird v. Moss, 33 Ch. D. 23, 25. (3) See as to special case, O. XXXIV. A special case may also be stated by order of the Court (r. 2), aud the parties may agree in writing as to payment of money and costs in pursuance of the judgment (r. 4). Where a married woman (not being a party in respect of her separate property or of any separate right of action by or () R. S. C., 1883, Order xxv. r. 5. Decision of question of law. The late Sir George Jessel decided in a well-known case (1) to which we have previously referred in connection with the subject of partnership, that in cases where at the trial of an action the decision of a point of law may render unnecessary the determination of a question of fact, the Court will follow the analogy of the above rule and decide the question of law first. See also as to obtaining the opinion of the Court on questions of law by originating summons, post, p. 782 (') Pooley v. Driver, 5 Ch. D. 460, 469. |