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Form of Judgment of Affirmance and Reversal by the Court of Error in Exchequer Chamber on a Special Case.

These forms are given ante, p. 536.

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VARIOUS statutes enable defendants to pay money into court by way of compensation or amends. By the Common Law Procedure Act, 1852, s. 70, “it shall be lawful for the defendant in all actions (except actions for assault and battery,(1) false imprisonment, libel, slander, malicious arrest or prosecution, 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 a court a sum of money by way of compensation or amends, provided nothing herein contained shall be taken to affect 6 & 7 Vict. c. 96, an act to amend the law as to defamatory words and libel." In actions against justices of the peace for acts done officially, the defendant may pay into court. (2) In actions on bonds

(1) i, e. an assault on the plaintiff, but not on the plaintiff's son, Newton v. Holford, 6 Q. B. 921; 2 D. & L. 554.

(2) 11 & 12 Vict. c. 44, s. 11; ante, p. 709.

with a penalty, the defendant may, with leave, pay into court under 4 & 5 Anne, c. 16, s. 13, and the action will be stayed.(1) In actions by a bankrupt's assignees to recover money due to the estate before the time for disputing the bankruptcy has elapsed, the defendant may pay into court.(2) So in actions for libel in a newspaper or periodical, the defendant may pay into court. (3) Where the money is paid in and pleaded, when it is incompetent to do so, the plaintiff may demur to the plea; or if the defect is ex facie, he may move for judgment non obstante veredicto or a repleader.(*) The defendant, however, is not bound in those actions, to which payment into court is inapplicable except under peculiar circumstances or under a certain character, to set forth in his plea such character or circumstances.(3) Where there are several counts in the declaration for several causes of action, the defendant may pay one entire sum into court in satisfaction of the whole,() without confining his plea to any particular count; (?) or he may pay money in upon one of the counts. (*) But the court has refused to allow a sum to be paid in as to part of the damages for breach of a special contract.(®)

2. How paid in.

"No rule or judge's order to pay money into court shall be necessary, except in the case of one or 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."(10) Where

(1) England v. Watson, 9 M. & W. 333; 1 Dowl. N. S. 668; Bishop of London v. M'Neil, 9 Exch. 490.

(2) 12 & 13 Vict. c. 106, s. 158; ante, p. 674.

(3) 6 & 7 Vict. c. 96, s. 2.

Aston v. Parkes, 15 M. & W. 385; 3 D. & L. 655; Key v. Thimbleby, 6 Exch. 692; see Thompson v. Sheppard, 4 E. & B. 53. (5) Ibid.; Thompson v. Sheppard, 4 E. & B. 53.

() Marshall v. Whiteside, 1 M. & W. 188; 4 Dowl. 766.

() Mitchell v. Towneley, 7 A. & E. 164.

Baillie v. Cazelet, 4 T. R. 579; so in replevin for goods taken in different places, he may pay money as to the goods in one place, and avow as to those in another, Lambert v. Hepworth, 2 Q. B. 729; 2 G. & D. 112.

(9) Hodges v. Litchfield, 3 M. & Sc. 201; 2 Dowl. 741,

two separate actions had been brought against two joint contractors, and one had paid money into court, the other was allowed to enter on the record a plea of payment without actually paying the same.(1) But the court has refused to allow money paid into court in lieu of special bail to be deemed as paid into court on a plea of payment. (2) If too little money has been paid in, from 'not allowing interest or damages up to the time of payment, &c., the defendant should apply for leave to amend his plea.(3) One of several defendants paying in is generally made to pay the costs against all the defendants, if the money is taken out in satisfaction.() It is usual to plead the plea on payment into court as the last plea.

3. When paid in.

The plea of payment into court must be pleaded within the same time as a plea in bar. Where, however, another plea has been pleaded, the defendant may apply to a judge for leave to withdraw it, and to pay money into court; (5) and it has been allowed even after a verdict or writ of inquiry was set aside.(6)

4. Form of Plea.

The following is given as the form of plea in the Common Law Procedure Act, 1852, s. 71:

, his attorney, [or, in person, &c.] [if

The defendant, by pleaded to part say, as to £ brings into court the sum of £ enough to satisfy the claim of the herein pleaded to.

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The full amount, admitted by the plea to be due, must be paid into court, () or a special defence shown as to the

(1) Rendall v. Malleson, 16 M. & W. 829.

(2) Balls v. Stafford, 4 Dowl. 327; 2 Sc. 426.

(3) See Cook v. Hopewell, 11 Exch. 555, ante, p. 886, where, the costs not being included, the plaintiff was entitled to go on with the action. (4) Hay v. Panchiman, 2 W. Bl. 1029.

(5) Griffiths v. Williams, 1 T. R. 710; Tarlton v. Wragg, 2 Str.

1271.

(6) Day v. Edwards, 1 Taunt. 491; Tidd, 672.

Tattersall v. Parkinson, 16 M. & W. 752; Grimsley v. Parker, 3 Exch. 610.

residue.(1) But it is not necessary to state how much is applicable to each several count, (2) though it is better to connect the counts where they are for the same sum, by pleading to both that it is the same sum, and paying into court such sum.(3) If the action is one, as to which payment into court is prima facie inapplicable, it seems unnecessary to state in the plea the particular character or circumstances under which the defendant became entitled to pay in money, and the above form is applicable in all cases; and where the defendant usurps the privilege of paying into court when not entitled to do So, the plaintiff's remedy is by an application to the court or a judge.(^)

5. Effect of Plea as an Admission, &c.

As regards the common indebitatus counts, a payment into court admits that the money is due under some contract declared upon, but does not necessarily admit any particular contract, and it lies on the plaintiff to show which, if he claims a larger amount.(3) And where the indebitatus counts are joined with special counts, payment into court on the former does not admit allegations in the latter. (6) So, where a declaration in tort is general, payment merely admits a cause of action, but not the cause sued for.() Where, however, money is paid in on a special declaration, or on a special count, setting forth a contract, the payment admits the contract as declared on.(8) It does not admit the plaintiff's right of action beyond the sum paid into court ;() and the defendant may plead a defence to other parts of the claim if it is

(1) Armfield v. Burgin, 6 M. & W. 281; 8 Dowl, 247. See Hills v. Mesnard, 10 Q. B. 266; Bailey v. Sweeting, 12 M. & W. 616; 1 D. & L. 653.

(2) Marshall v. Whiteside, 1 M. & W. 188; 8 Sc. 243; Noel v. Davies, 4 M. & W. 136. Thompson, 4 Q. B. 543.

(3) Tattersall v. Parkinson, 16 M. & W. 752. (4) Thompson v. Shepherd, 4 E. & B. 53.

Beesley v. Dolley,
See also Brune v.

(5) Kingham v. Robins, 5 M. & W. 94; Robinson v. Ward, 8 Q. B. 920; 7 Dowl. 352; Schreger v. Carden, 11 C. B. 851; Goff v. Harris, 5 M. & Gr. 573.

(6) Charles v. Branker, 12 M. & W. 743; 1 D. & L. 989; Gould v. Oliver, 2 Sc. & R. 242; 2 M. & Gr. 208.

(1) Perren v. Monmouthshire Railway Company, 11 C. B. 855; Tancred v. Leyland, 16 Q. B. 669; Story v. Finnis, 6 Exch. 123.

(*) Perren v. Monmouthshire Railway Company, 11 C. B. 855; Archer v. English, 2 Sc. N. R. 156; 9 Dowl. 11; Robinson v. Harman, 1 Exch. 850; Wright v. Goddard, 8 A. & E. 144.

(9) Stapleton v. Nowell, 6 M. & W. 9; 8 Dowl. 196.

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