tion, criminal conversation, or debauching of the plaintiff's daughter or servant,) and, by leave of the court or a judge, upon such terms as they or he may think fit, for one or more of several defendants to pay into court a sum of money by way of compensation or amends: provided that nothing herein contained shall be taken to affect the provisions of a certain act of parliament passed in the session of parliament holden in the sixth and seventh years of the reign of her present Majesty, intituled An Act to amend the Law respecting defamatory Words and Libel.'" (6 & 7 Vict. c. 96.) This section omits the word "personal," used in 3 & 4 Will. IV. c. 42, s. 21, under which and the R. G., H. T., 1 Vict. r. 1, payment into court was formerly regulated. Now leave of the court or a judge is no longer necessary for payment into court, except where several defendants are sued, and one or more of them desire to plead such payment. (See s. 82.) In Newton v. Holford (6 Q. B. 921), the excepted actions for assault were held to be limited to an assault on the plaintiff or on his wife if she joined in the action, and not to extend to a loss of service to the plaintiff by reason of an assault upon his son. The 6 & 7 Vict. c. 96, s. 2, permits the defendant"in any action for libel in any public newspaper or other periodical publication to plead that such libel was inserted in such newspaper or other periodical publication, without actual malice, and without gross negligence; and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action, and that every such defendant shall, upon filing such plea, be at liberty to pay into court a sum of money by way of amends, and such payment into court shall be of the same effect, and be available in the same manner, and to the same extent, and be subject to the same rules and regulations as to payment of costs and the form of pleading, except so far as regards the pleading of the additional facts herein before required to be pleaded by such defendant, as if actions for libel had not been excepted." (See 3 & 4 Will. IV. c. 42, s. 21.) There are numerous statutes by which justices, constables, &c., may pay money into court in any action against them for any thing done by them in the execution of their respective duties, and these will still be in force (see now as to justices, 11 & 12 Vict. c. 44;) and there is no occasion in such plea to state the character in which the defendant makes the payment. (Aston v. Perkes, 15 M. & W. 385.) 71. "When money is paid into court, such payment Form of the shall be pleaded in all cases, as near as may be, in the plea. following form, mutatis mutandis: "The defendant by pleaded to part say, as to his attorney [or in person &c.] [if pounds, parcel of the money claimed] brings into court the sum of pounds, and says that the said sum is enough to satisfy the claim of the plaintiff in respect of the matter herein pleaded to." into and out 72. "No rule or judge's order to pay money into Payment court shall be necessary, except in the case of one or of court. more of several defendants, 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 or to his attorney, upon a written authority from the plaintiff, on demand." It will be observed that this is framed without reference to any form of action; but the general words "as near as may be" will authorize alterations to adapt the plea to the names of the parties, the part of the declaration to which it is pleaded, and the like. The only replication contemplated is, damages ultra, if the plaintiff does not take the money out of court and tax the costs; and therefore, although special demurrers are abolished, any material alteration of the plea would give rise to an application under s. 52. Such, for instance, as that which was held bad in Key v. Thimbleby (20 L. J. 292, Exch.), where in trover for the conversion of cattle the defendant pleaded that the conversion of the cattle in the declaration mentioned, and for which the action was brought, was the sale of the cattle by him after he had as surveyor of the highways seized and impounded them according to the statute, and the plea then alleged payment into court of 101. and damages ultra. So it is apprehended that if in an action on a bill of exchange, the defendant pay into court less than the amount of the bill, without any answer as to the residue, the plea ought to be amended under s. 52; for if issue were taken on it, it would be an informal never-indebted, and the defendant could set up any defence which would have been admissible under the old general issue. (See Harris v. Bushell, 2 D. N. S. 514; Armfield v. Burgin, 6 M. & W. 281.) So also if the plea of payment into court is attempted in a case in which it necessarily appears by the declaration that it is not allowed, the plaintiff might either apply under s. 52, or after issue joined he might obtain judgment non obstante veredicto or a repleader; but if the plea might be good in some cases—as for instance under the statutes as to justices Effect of payment tnio court. Lien of attorney. no objection could be taken on the record. (Aston v. Perkes, 15 M. & W. 385.) Taking the money out of court will waive any irregularity in the payment into court. (Griffiths v. Williams, 1 T. R. 710.) But if the defendant be under terms of pleading issuably, the plaintiff is not precluded by taking the money out of court in satisfaction of one or more counts, from signing judgment on the other counts, if now issuable pleas are pleaded to them. (Verbist v. De Keyser, 3 D. & L. 392.) In the case of one or more of several defendants, desiring to pay money into court, the rule or order must be obtained in the usual way by application to the court on motion, or by summons before a judge, which will be the most usual. After service of the rule or order where necessary, the money must be taken with the plea (which need not be signed, s. 85) to one of the masters, who will give the receipt in the margin, and the plea is then delivered in the ordinary way. The omission of the receipt, or of the rule or order where necessary, would authorize the plaintiff to sign judgment. The amount paid in where interest is due should include interest up to the time of plea pleaded. (Kidd v. Walker, 2 B. & Ad. 705.) Where the defendant pleads payment into court to part, and other pleas to the residue, the plaintiff must reply to such pleas, or the defendant may, by leave of the court, sign judgment of non pros. (Topham v. Kidmore, 5 Dowl. 676.) The effect of payment into court under a general indebitatus count, or in an action for a tort, as an admission, is merely that it admits the defendant is liable to the extent of the sum so paid in in respect of some contract or wrongful act, which may be included in the declaration; but the particular contract or wrongful act, and the damages ultra the amount paid must be proved at the trial. (Kingham v. Robins, 5 M. & W. 94; Story v. Finnis, 6 Exch. 123; 20 L. J. 144, Exch.; Schreger v. Carden, 21 L. J. 135, C. P.) The plaintiff must also prove his separate right to sue upon that contract (Kingham v. Robins, 5 M. & W. 94); and if the action be brought against two or more defendants, he must prove their joint liability. (Archer v. English, 1 M. & G. 873; Schreger v. Carden, overruling Leyland v. Tancred, 19 L. J. 313, Q. B.) Where the declaration, however, is on a special contract, such special contract is admitted to the extent the plaintiff is bound to prove it, whether it be laid under a videlicet or not. (Cooper v. Blick, 2 Q. B. 915; see the cases in Taylor on Evidence, i. 560.) Of course pleas in denial or in confession and avoidance of any part of the cause of action, to which the payment into court is pleaded, will not be allowed. (Thompson v. Jackson, 1 M. & G. 242; 8 Dowl. 591.) At first sight, the plaintiff would seem, under sect. 72, to be entitled to obtain the money out of court without regard to the lien of his attorney upon any sum recovered in the suit for the amount of his costs. But it is apprehended that the only effect of the section is to compel an attorney to inform his client that a sum of money has been paid into court, so that he may have an opportunity of deciding for himself whether he will go on with the suit or not. The statute ought not to be construed to deprive the attorney of his right of lien, unless it is absolutely imperative; but looking at the scope of the section, and the ordinary use of the word plaintiff as merely describing one of the litigant parties, the construction may be that whereas hitherto the plaintiff was authorized to take the money out of court, which was in practice done by the attorney in the suit, henceforth it shall not be done by the attorney without a written authority. It might also be read thus:The plaintiff, if he sues in person, may take it out; if not, the attorney on the record may with his written authority. Even supposing neither of these views were adopted, the rights of the attorney might easily be protected, by the master requiring, as he does now, the production of the plea, with the receipt in the margin; for the client could not obtain that from his attorney without satisfying his lien. payment into 73. "The plaintiff, after the delivery of a plea of pay- Replication ment of money into court, shall be at liberty to reply to to plea of the same by accepting the sum so paid into court in full court. 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 nonpayment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed, or the plaintiff may reply that the sum paid into court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded; 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 This slightly varies from the rule of 1 Vict. to meet the alteration in the form of a plea, and gets rid of the difficulty as to this plea in debt. (Lowe v. Steele, 15 M. & W. 385.) The replication must be delivered within the time limited in ordinary cases. the plea of payment into court be to the whole declaration, and the plaintiff determines upon not accepting the money in satisfaction of his claim, he should reply that accordingly in the manner pointed out by the above rule, and make up the issue, and proceed to trial, &c. as in ordinary cases. If the plea be only to part of the claim, and there be any other plea to the rest of it, and the plaintiff determines upon proceeding to trial upon the cause of action, to which the plea of payment into court is not pleaded, he should reply that he accepts the money in satisfaction of that part of the claim to which it is paid in, and he should reply to the other plea or pleas, and ment into court. proceed to trial as in ordinary cases. If the plea of payment of money into court be to the whole of the declaration, and the plaintiff determines upon accepting the money in satisfaction of the cause of action, he should reply that acceptance, and in that case he may at once proceed to a taxation of costs, and sign final judgment for them if not paid in forty-eight hours after taxation. If the plea be only to part of the declaration, and the plaintiff determines upon accepting the monies, and proceeding no further in the action, he should then reply the acceptance of the money in satisfaction to the part of the claim to which it is paid in, and enter a nolle prosequi to the rest, and proceed to a taxation, &c., as just pointed out. The nolle prosequi need merely be inserted in replication delivered. There is no occasion to enter it on any roll until the Costs on pay- judgment roll be carried in. The construction of the R. T., 1 Vict. as to the plaintiff's right to costs was elaborately_discussed in the recent case of Rumbelow v. Whalley (20 L. J. 260, Q. B.); and the rule there laid down will apply also to the 73rd section. "By the language of this rule it is plain that it contemplates the payment into court, either in respect of the whole causes of action, or in respect of a part only of them selected by the defendant; and in either case it gives the plaintiff his costs of suit, if he accepts the money so paid into court in discharge. It is equally clear that it gives the defendant his costs of suit only where the plaintiff replies damages or a debt to a greater amount, and there is an issue thereon, that is, on such allegation of greater amount. It comes to this, therefore, that whenever the only question intended to be raised by the pleadings is the amount of the original debt, the defendant can put the plaintiff to the alternative of accepting in discharge of his whole demand whatever sum he chooses to pay into court, or to proceed for more at the risk of the costs of the suit. But whenever the original debt is larger than the sum which the defendant chooses to pay as a balance, and thus he is obliged to plead an affirmative plea or pleas to reduce the original debt to such balance, he necessarily insulates the sum so paid from the rest of the declaration, and so entitles the plaintiff to accept it in discharge of the cause of action in respect of which it is paid into court, and to receive all costs of suit thereon." In debt for work and labour, the pleas were, first, except as to 101. parcel, &c. never indebted; secondly, as to 10%. other parcel, &c. payment; thirdly, as to 10%. excepted, payment into court of 101. 1s. in full satisfaction of the said sum of 10%., and damages by reason of its nonpayment. The replication joined issue on the first plea; traversed the payment alleged in the second plea; and to the third plea, that the person accepted and took out of court the amount paid in in satisfaction of the causes of action, and prayed judgment for his costs in that respect. A verdict was found for the plaintiff |