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money into court.' It is, however, a conclusive admission of the plaintiff's right to sue, and of his right to the character in which he sues. But as it is no admission of the plaintiff's right of action, beyond the sum paid into court, it does not deprive the defendant of the benefit of the statute of limitations, as to the residue of the plaintiff's demand.5

When money is paid into court, it is a payment pro tanto; the defendant cannot, and the plaintiff must, take it out; and if the defendant die, and the action be revived, or a new one be brought, such payment may be given in evidence in the second action.

If the plaintiff, after money has been paid into court, proceed in his action, it is at his peril. The sum paid in, must be considered as stricken out of the declaration; it is for so much, a defence, and unless the plaintiff prove a sum to be due, beyond what is paid, the verdict should be for the defendant." If, however, more appears to be due to the plaintiff, he is entitled to a verdict, for the overplus and costs.

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The plaintiff stands in much the same situation, as regards the residue of his demand, as he would have done, if the defendant had never acquiesced in any part of it; he may, therefore, be nonsuited," or there

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may be a judgment as in case of nonsuit, or a demurrer to evidence, or a plea puis darrien continuance; in short, the cause goes on, substantially, in the same manner, as if the money had not been paid in at all. The plaintiff is entitled, at all events, to the money brought in, whether he proceed in his action or not, or though he be nonsuited, or have a verdict against him. And it cannot afterwards be recovered back, though it should appear, that the defendant paid in the same wrongfully, unless, perhaps, some fraud or deceit were practised upon him.s

A tender, upon which money is paid into court, admits the contract as set forth in the declaration, as in other cases. And where a tender is pleaded, and the money brought into court, the proceedings are substantially the same as under the common rule, except that the defendant, if the money be accepted, pays

no costs.

But the defendant cannot recover back the money, though the plaintiff, in his replication, deny the tender, or the defendant obtain a verdict. In case of a plea of tender, the money must be brought into court, otherwise it may be treated as a nullity, and in case of a verdict for the defendant, the plaintiff may have judgment, non obstante veredicto.5

Costs. When money is brought into court, the plaintiff either accepts it with costs, in discharge of the suit, or proceeds in the action: if he elect the

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Gutteridge v. Smith, 2 H. Black. Rep. 374.

2 Malcolm et al. v. Fullarton, 2 Term. Rep. 645. Vaughan v. Barnes, 2 Bos. & Pul. Rep. 392.

3 Cox v. Brain, 3 Taunt. Rep. 95.

4 Le Grew v. Cooke, 1 Bos. & Pul. Rep. 332. Cox v. Robinson, 2 Stra. Rep. 1027.

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former course, he notifies the defendant of his intention, and if the costs remain unpaid, he has a right to proceed, and will recover his costs, with nominal damages.1

But if the plaintiff do not elect to take the money, but proceeds to trial, unless he prove a sum to be due beyond what is paid into court, the defendant, as before stated, is entitled to a verdict, and will recover the costs of the action, from the time the money was paid into court, but not before, and the plaintiff recovers no costs.2

If the plaintiff recover more than the sum paid in, he is entitled to his costs, in the same manner, as if there had been no payment.3

The plaintiff is entitled to costs up to the time of the defendant's paying money into court, if he take it out at any time before trial, even if he proceed in the cause, and though he afterwards gives notice of trial, which he neglects to countermand, whereby the defendant is entitled to judgment, as in case of nonsuit ;* but not if the defendant have obtained such judgment; in which case, the subsequent costs are to be allowed to the defendant.5

In actions on policies of insurance, where there is a consolidation rule, and money is paid into court, it seems that the plaintiff is entitled to the whole costs of the causes not tried, up to the time when the money

1 Bucker et al. v. Palsgrave, 1 Camp. Rep, 557.

2 Reg. Gen. S. J. C. 17. Appendix A. 20th Rule C. C. Pleas. Appendix B.

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2 Paine & Duer. Pract. 164. 1 Saund. 33, note 2. Stevenson v. Yorke, 4 Term. Rep. 10. Postle v. Beckington, 6 Taunt. Rep. 158. 1

Marsh. Rep. 510. S. C.

* Seamour v. Bridge, 8 Term. Rep. 408. Lorck v. Wright, 8 Term. Rep. 486.

Crosby et al. v. Olorenshaw, 2 Maule & S. Rep. 335.

is paid into court, although he may not succeed in the cause, and although the defendant in that cause be entitled to the whole costs.1

Where the conduct of the plaintiff appeared to have been extremely oppressive, and the defendant offered, and was willing to pay the money, before action brought, the court, upon motion of the defendant, discharged so much of the rule as related to the payment of costs;2 and in a recent case, they allowed the defendant his costs, from the time he made the offer, to be deducted from the costs incurred by the plaintiff up to that time.3

But, in our practice, the rule being clear, and defined by the court, they would not probably exercise their discretion in such a case, to the infringement of the rule itself.

1 Tidd's Pract. 547. Twemlow v. Brock, 2 Taunt. Rep. 361. Vide Burstall v. Horner, 7 Term. Rep. 372.

2 Johnson v. Houlditch, 1 Burr. Rep. 578.

3 James V. Raggett, 2 Barn. & Ald. Rep. 776.

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CHAPTER V.

BILL OF PARTICULARS.

In what cases it may be required. In all actions in which the plaintiff declares generally, without specifying the particulars of his cause of action, the court, upon application, will order him to give the defendant, the particulars of his claim, in writing, before the latter shall be compelled to plead. Thus, in actions for work and labor, goods sold, money had and received, and the like, the defendant may call upon the plaintiff, for the particulars of his demand.' So in an action of debt upon a bond conditioned for the performance of covenants, or to indemnify, or the like, the defendant may call for a particular of the breaches, for which he is sued; and in an action, where it was alleged in the declaration, that the abstract of title delivered, was "insufficient, defective, and objectionable," the court obliged the plaintiff, to give a particular of all objections to the abstract, arising upon matters of fact. So in an action by a vendee, to recover back his deposite, because the conditions of the sale had not been complied with, the defendant is entitled to the particulars of the ground, on which the plaintiff seeks to recover."

This mode of obtaining from the plaintiff, a knowl

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