2. Application for Leave to discontinue (b).

[Formal parts as usual in application to Master] for an order that the plaintiff be at liberty to discontinue this action [or to withdraw so much of his claim in this action as, &c., as in the above notice, specifying the portion which it is desired to withdraw].

3. Order thereon (c).

[Formal parts as usual.] Upon hearing [the solicitors upon both sides] and upon the plaintiff's application: It is ordered that upon payment of the defendant's costs to be taxed this action be discontinued [or that so much of the plaintiff's claim herein as relates to (or is for or is contained in -) be struck out and withdrawn, and that the plaintiff do pay to the defendant his costs occasioned by the matters so withdrawn and of this application, to be taxed]. [Without prejudice to any other action which the plaintiff may bring (or the plaintiff by his said solicitor undertaking not to bring any other action against the defendant) in respect of his claim in this action (or in respect of the said matters withdrawn) (until after payment of the said costs).]

4. Application by Defendant for Leave to withdraw or strike out Defence or

the

Counter-claim (d).

[Formal parts as usual in application to Master] for an order that the defendant be at liberty to withdraw his counter-claim [or defence, or as relates to -] herein [or that the defendant's counter-claim, or, &c., herein be struck out] in pursuance of Ord. XXVI., r. 1.

paragraphs of

or so much of

[The order may be framed from the terms of the application and of the order, supra, No. 3.]

5. Judgment for Defendant for his Costs on Discontinuance before Reply (e).

The plaintiff having by a notice in writing dated the

day of

19, wholly discontinued this action [or withdrawn his claim in this

(b) See note (a), supra.

The order should be that the action be "discontinued," and not that it be "stayed (Anon., W. N. 1876, 40).

Where the order gives the plaintiff liberty to discontinue upon payment of costs, the action continues until they are actually paid (1 Pr. 14th ed. 338).

(e) See note (b), form No. 2.

(d) See n. (a), supra.

(e) By R. S. C., Ord. XXVI., r. 3, " Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned

C.F.

11

action for

to

or withdrawn so much of his claim in this action as relates or as the case may be],

It is this day adjudged that the defendant recover against the plaintiff costs [of action, or occasioned by matter withdrawn], to be taxed.

day of

The above costs have been taxed and allowed at £the Taxing Officer's Certificate dated the

6. Judgment under Order for Defendant for his Costs on Default of Payment

dated the

day of

19

Pursuant to the order of whereby it was ordered that upon payment of the defendant's costs to be taxed this action be discontinued [or as the case may be, reciting the terms of the order], and the said costs having been taxed at £— as appears by the Taxing Officer's Certificate dated the day of 19—, and default having been made by the plaintiff in paying the said costs within four days after taxation:

It is this day adjudged that the defendant recover against the plaintiff £, the amount of the said taxed costs.

7. Execution for Defendant's Costs.

Same as in ordinary cases. See post, "Execution on Judgment for Defendant." As the defendant may now sign judgment for his costs on a discontinuance, the special form of fieri facias used in Bolton v. Bolton, 3 Ch. D. 276; 35 L. T. 358, is no longer necessary.

8. Summons to stay Action until Costs of discontinued Action paid (g). [Formal parts as usual in application to Master] for an order that this action and all proceedings therein be stayed pursuant to Ord. XXVI., r. 4, until the costs of the action, 19—, No. - [insert reference to record], brought by the above-named plaintiff against the above-named defendant, and which was discontinued, be paid, and that the costs of this application be

The order may easily be framed from the terms of the summons.

by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within four days after taxation."

The above form, No. 5, is given in the R. S. C., App. F., No. 14.

(f) See note (e), form No. 5.

(g) Staying Proceedings in subsequent Action until Costs of discontinued Action are paid.]-By R. S. C., Ord. XXVI., r. 4, "If any subsequent action shall be brought before payment of the costs of a discontinued action for the same, or substantially the same, cause of action, the Court or a Judge may, if they or he think fit, order a stay of such subsequent action, until such costs shall have been paid."

CHAPTER IV.

PAYMENT INTO COURT, AND TENDER AND PROCEEDINGS THEREON (a).

1. Notice of Payment of Money into Court before Defence (b).

Take notice that the defendant [or defendant ('. D.] has paid into Court £—, and says that that sum is enough to satisfy the plaintiff's claim [or the plaintiff's claim for, specifying the claim in respect of which the payment has been made].

2. Request for Lodgment of Money when paid into Court before Defence (c).

High Court of Justice: King's Bench Division.

Title of cause

or matter.

}

Request for Lodgment of Money.

A. B. v. C. D. [and others]: 19-, —, No. ———.

To the Agent of the Bank of England (Law Courts Branch). Please receive£for the account of the Paymaster-General for the (a) Payment into Court-In what Cases.]—By R. S. C., Ord. XXII., r. 1, “ 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 or a Judge, 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 counter-claims for libel or slander), pay money into Court which shall be subject to the provisions of rule 6: provided that in an action on a bond under the statute 8 & 9 Will. 3, c. 11, payment into Court shall be admissible to particular breaches only, and not to the whole action."

..

By r. 8, Where money is paid into Court in two or more actions which are consolidated, and the plaintiff proceeds to trial in one, and fails, the money paid in and the costs in all the actions shall be dealt with under this Order in the same manner as in the action tried."

By r. 9, "A plaintiff may, in answer to a counter-claim, pay money into Court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into Court by a defendant."

(b) Payment before delivering Defenc›.]—By Ord. XXII., r. 4, "If the defendant

(e) See note (e), p. 134.

time being for and on behalf of the Supreme Court of Judicature, which amount is paid in on behalf of defendant C. D. [state name] in satisfaction of claim of above-named A. B. [state name of party].

Name of solicitor on

the other side :

Mr. D. Z.

(Signature) X. Y., Solicitor for the defendant C. D. Date, 19-.

day of

3. Bank Certificate of Receipt (d).

To the Assistant Paymaster-General.

Bank of England,

The above-stated sum has been this day received.

19-.

For the Governor and Company of the Bank of England.

(Signature)

4. Defence of Payment into Court (in Satisfaction of Claim) where Payment has been made before Pleading, and Notice thereof given (e).

in satisfaction of the plaintiff's -, or of so much of the plaintiff's

[The payment must be pleaded in the defence, either alone where money is paid in as the only defence to the whole claim, or as a distinct paragraph where it is paid in as to part of the plaintiff's claim or together with other defences; it may be stated thus:]-The defendant on the day of 19-, paid into Court the sum of £ claim [or of the plaintiff's claim for claim as claims], and gave notice of such payment to the plaintiff, and he says that that sum is enough to satisfy the plaintiff's claim [or the plaintiff's claim herein pleaded to, or the paragraph may commence, As to so much of the plaintiff's claim as claims, &c., and conclude as above].

pays money into Court before delivering his defence, he shall serve upon the plaintiff a notice specifying both the fact that he has paid in such money, and also the claim or cause of action in respect of which such payment has been made. Such notice shall be in the form No. 3 in Appendix B., with such variations as circumstances may require.” The above form is framed from that referred to in the Rule.

(c) This form and that which follows next are given in the Supreme Court Funds Rules, 1894, App. No. 11, and their use is prescribed by r. 32 of those Rules. Before serving the notice of payment (form No. 1), present the request (form No. 2), together with the money to be paid in, at the Bank of England (Law Courts Branch), and receive in exchange the certificate of receipt (form No. 3), producing the notice of payment in order that the certificate may be given on it. See S. C. F. R., r. 32.

(d) See note (c), supra.

(e) Pleading Payment into Court.]-By Ord. XXII., r. 2, " Payment into Court shall be signified in the defence, and the claim or cause of action in satisfaction of which such payment is made shall be specified therein.”

parcel of the

5. Defence of Payment of Money into Court (in Satisfaction of Claim) where the Payment is made at Time of delivering Defence (f). The defendant as to the whole action [or as to £ money claimed, or as to the plaintiff's claim on the guarantee of the of, 19—, or as the case may be] brings into Court £that sum is enough to satisfy the plaintiff's claim [or the plaintiff's claim herein pleaded to].

and says

6. Request for Lodgment of Money when it is paid into Court (in Satisfaction of Claim) at Time of Delivery of Defence (g).

[Use form No. 2, supra, p. 163.]

7. Defence of Payment of Money into Court with Denial of Liability (h). The defendant [in the alternative and] whilst denying all liability in respect of the plaintiff's claim herein [or of the plaintiff's claim herein for, specifying the particular claim] brings into Court £, and says that that sum is sufficient to satisfy the said claim [or the said claim herein pleaded to].

8. Request for Lodgment of Money when it is paid in with Defence
denying Liability (i).

[Use form No. 2, supra, p. 163, but substitute for the statement which there follows the asterisk,*, this statement :] paid in on behalf of defendant C. D. [slate name] against claim of above-named A. B. [state name of party] with defence denying liability.

9. Notice of Payment of Money into Court with Denial of Liability, in Action without Pleadings.

[Adapt form No. 1, supra, p. 163, by saying in the body of the notice:] Take notice that the defendant [or defendant C. D.] has paid into Court

and whilst denying all liability in respect of the plaintiff's claim herein [or the plaintiff's claim herein for, specifying the particular clair] says that the said sum is sufficient to satisfy the said claim.

(f) This form is given in R. S. C., App. D., Sect. IV.,“ General Defences," No. 8. (g) See S. C. F. R., 1894, r. 32, and App. No. 11. Before delivering the defence. present the request, together with the money to be paid in, at the Bank of England (Law Courts Branch), and receive in exchange a certificate of receipt, producing the defence in order that the certificate may be given on it. This certificate will be the same in form as that given supra, p. 164 (form No. 3).

(h) Denial of Liability.]-By R. S. C., Ord XXII., r. 1 (supra, p. 163, n. (a)), the defendant may, except in actions or counter-claims for libel or slander, pay money into Court with a defence denying liability. The money is subject to the provisions of 1. 6, infra.

(0) See S. C. F. R., 1894, r. 32, and App. No. 11. The procedure is the same as that stated supra, n. (g).