So, a man not in actual custody, but upon bail, is not liable to all other actions. 1 Sal. 1.

So, if he is not in actual custody, he may plead the privilege of C. B., though he be arrested by process of B. R., and is thereby supposed to be in custodia marescalli. R. 1 Sal. 1.

A declaration against a defendant as a prisoner, must mention at whose suit.

But if it is in debt, and says the latitat was de placito quod reddat to the plaintiff, is is sufficient; for it must be understood it was his suit. Morris v. Watkins, P. 10 Geo. 2. Ld. Raym. 1362.

And if it does not mention at whose suit, defendant may demur generally. Williams v. Wills, H. 19 Geo. 2. Wilson, 119.

(C 9.) Addition not necessary, nor recital of a plaint.

In B. R. the defendant's addition is not necessary, for the declaration is not founded on an original, and therefore is not within the st. 1 H.

5. 5.

So, a recital of the plaint is not necessary.

Nor, a recital of the original at large, where the suit is thereby original. R. Carth. 108.

But in account and debt the usual form is to say, A. queritur de B. in cust. mar. &c. de placito quod reddat ei 10 lb. &c. pro eo videlicet quod cum, &c. In covenant de placito conven. fract. 2 Sand. 361.

In case and ejectment. A. queritur de B. in cust. mar. &c. pro eo videlicet quod cum, &c.

Yet the bill or plaint ought to be filed. 2 Cro. 186.

And if the bill be filed before cause of action, it is error. Vide Action (E).

So, if there be a material variance between the bill and declaration. R. Latch, 58. 2 Cro. 294. Vide Variance between Original and Declaration, post. (C 13, 14, 15.)

When it may be amended. Vide Amendment, (D 7, 8.)

[*]So, a new bill may be filed by leave of the court, where the old one have been lost. R. 2 Cro. 186.

may

Šo, a declaration upon a bond, indenture, or other deed, does not conclude with a profert in cur. &c. but after mention of the deed is added curiæque dict. domini regis nunc hic ostens.

If the plaintiff declares by such a one, his attorney omitting his christian name, it is error. R. 1 Rol. 336. Vid Attorney, (B 7.)

Payment of money into court is an admission of only a legal demand. Ribbans v. Crickett. C. P. E. 38 Geo. 3. 1 Bos. & Pull. 264.

(C 10.) When money may be brought into court.

If the declaration be for a large sum of money, where only a small sum is due, on motion of the defendant, and payment into court of the sum due and costs to the time of the motion, the plaintiff shall proceed for the residue at his peril.

The first motion to bring money into court was in Kelynge's time, and introduced to avoid the hazard and difficulty of pleading a tender. Str. 787.

And in B. R. if the defendant produces the rule at the trial, and the jury do not give damages above the sum paid into court, the plaintiff will be nonsuited, and must pay costs to the defendant.

So in C. B.

After refusal, or issue joined, plaintiff may have it and costs, to the time of paying in, he paying defendant subsequent costs. Barnes, 280. 282. 284. 287. 357. In the K. B. if the defendant pays money into court, the plaintiff is entitled to costs up to that time, though he afterwards proceeds with the action. 1 T. R. 629. If the defendant pays money into court, which the plaintiff refuses to accept, and at the trial a juror is withdrawn, the plaintiff cannot claim costs up to the time of paying money into court. 3 T. R. 657.

The plaintiff is entitled to costs up to the time of payment of money into court, though he proceed to trial and fail, provided he apply before trial, and serve the defendant with notice of an appointment before the master to tax the costs (which he, not the defendant, must do); after trial he comes too late. 4 T. R. 10.; 1 T. R. 710. Id. 10.

In all cases where the plaintiff does not proceed to trial, he is entitled to costs up to the time of paying money into court; even though defendant may have judgment as in case of a nonsuit. 8 T. R. 408.

Where money is paid into court, and there is no trial, the plaintiff is entitled to costs up to that time, though he withdrew the record twice after carrying it down, and then discontinues. 8 T. R. 486.

Where the defendant having failed from having paid money into court generally, obtains a new trial, and leave to amend the rule for paying, &c. by confining it to particular counts, whereupon the plaintiff elects to accept the money, and not proceed further, he is entitled to the costs of the whole action. 9 East, 325.

Touching the question of costs, judgment is in case of a nonsuit of the same force as a judgment upon nonsuit; as, therefore, in the latter case the plaintiff is not entitled to costs up to the time of the payment by the defendant of money into court, neither is he in the former. 2 M. & S. 335.

In C. B., if the defendant pay money into court, the plaintiff will not be entitled to costs up to that time at all events, although he should afterwards proceed to trial, and a verdict should be found for the defendant. 2 B. & P. 56.

In C. B. a plaintiff is entitled to costs up to the time of paying in money, notwithstanding he proceeds to trial and fails. 3 B. & P. 556.

The general rule as to costs, where money paid in is not accepted, and the defendant has a verdict, is the same in C. B. as in K. B., namely, that [*]the plaintiff is not entitled to costs up to the time of payment in. 2 Taunt. 361.

A defendant succeeding after payment of money into court which the plaintiff refuses to accept, is entitled to the costs of the whole action.

4 Taunt. 196.

Where the defendant pays money into court, and the plaintiff proceeds, and suffers the defendant to sign judgment of non pros against him, he shall not afterwards be entitled to his costs up to the time of paying the money into court. 510.; 6 Taunt. 158.

1 Mars,

Where money is paid into court upon some counts only which the plaintiff takes out, he is only entitled to the costs of those counts. 4 T. R. 579,

Where the plaintiff accepts money paid into court on one count only, and discontinues, he is not entitled to the costs of the others. 2 Taunt. 266.

Where several insurance causes on the same policy, in each of which the defendants have paid money into court, which the plaintiff has taken out without taxing costs, are consolidated to abide the event of one; if the plaintiff is nonsuited in that one, he is not entitled to costs in the others, up to the time of paying money into court, any more than in the one tried. 7 T. R. 372.

Where actions on policies are consolidated, and money is paid into court, which the plaintiff not accepting, the defendant has a verdict, the plaintiff is nevertheless entitled to the costs of the short causes up to the time of payment in. 2 Taunt. 361. A plaintiff on a policy, taking the premium out of court, does not lose his costs of the special counts, where there is no consolidation rule, though he had failed on the special counts in another action. 5 Taunt. 607.

If defendant refuses to pay costs, attachment shall go.

Barnes, 283.

And the plaintiff shall have the money brought into court; though he be nonsuit. Sal. 597.

A pauper plaintiff shall have the money out of court, though the verdict is for defendant; if not a pauper, defendant would have it towards his costs. Lee v. Holland, T. 1730.

Bunb. 287.

If plaintiff recovers a less sum, defendant shall have the money towards his costs. Barnes, 280.

Money brought into court on pleading a tender, cannot be taken out by defendant towards his costs, though he has a verdict. Cox v. Robinson, H. 9 G. 2. Str. 1027. B. R. H. 206.

If defendant does not pay the costs taxed, though plaintiff recovers less than the money paid into conrt, yet he shall have his costs. Hand v. Dinely, H. 18 G. 2. Str. 1220.

It shall not be paid back to executors on defendant's death. Barnes, 279. Though plaintiff dies before trial, defendant cannot have back the money. Barnes; 281.

Plaintiff shall have the money, though judgment is arrested. Barnes, 284. Money paid into court by mistake, cannot be recovered back. fraud. 2 B. & P. 392.

Secus, if paid by Where a defendant deposited money, under a rule of court, to abide the event of an action of tort, and died before trial, the plaintiff was not permitted to take it out. 5 Taunt. 603.

If plaintiff replies after money paid in, he cannot afterwards take it out and enter acquittal, without leave of the court and payment of defendant's costs. Barnes, 357. Where money is paid into court upon the common rule, the court will not discharge that part of it which directs the payment of costs, unless the defendant have been prevented making a legal tender by the fraud or vexatious conduct of the plaintiff. Therefore they refused the application where the defendant had merely pulled out his pocket book, for the purpose of [*]making a tender, six weeks before action brought, and was prevented by the plaintiff' walking away; never repeated the offer. 2 Mars. 478.

Where money is paid into court generally, it can only be applied to such demands as are legal. 1 B. & P. 265.

Where money may be paid into court upon some counts of the declaration, upon others not, a payment generally must be applied to the former only. 1 Mars. 581.: 6 Taunt. 322.

On a declaration stating multifarious demands arising out of one transaction, payment into court of a sum incompetent to meet all the demands, cannot be applied by the plaintiff as evidence of such one of the demands as he may elect. 7 Taunt. 450.; 1 Moore, 158.

If money is regularly paid into court under a rule, as in an action for unliquidated damages, the plaintiff's course is to move to discharge the rule; for if he takes the money out, he waives the irregularity, so that, to entitle himself to a verdict, the jury must give damages beyond the sum paid in. 1 T. R. 710.

The payment of money into court admits, 1st, the plaintiff's right to maintain the action; 2dly, and to recover up to the extent of the sum paid in, and no more. If, therefore, consistently with the defendant's contract, he may have concluded it, and yet owe thereon no more than the sum paid in, the onus of proving, in the regular way, that more is due, lies upon the plaintiff. 1 T. R. 461.

The payment of money into court is an admission of the contract stated in the court. 2 T. R. 275.

Payment of money into court generally admits the contract as stated in the declaration. 9 East, 325.

Payment of money into court generally, admits the existence of a contract in every transaction which may be turned to one by assent of parties. 2 B. & P. 550. The payment of money into court by a defendant sued on a contract, is an act whence a jury may infer that he made the contract, such being the natural inference,

The fact that he made it being established, if it necessarily follows that having made it, he must owe more than the sum paid in, they are warranted in finding that also, unless he shows payment. But, unless that is the inevitable consequence; if it does not follow, that because he made the contract, he therefore owes the money; if a state of things may exist in which he would be liable for the sum paid in, and no more, he is not, by the act of paying in the money, made liable farther. Hence, where an action was brought on a policy on goods to be loaded at a particular port, and the defendant paid money in generally; held, that he might contend that the goods except as to such portion as the money paid in covered, were not loaded at the specified port, and so that the policy never attached. 2 M. & S. 106. Payment of money into court in a suit demanding payment, does not discharge the debt; therefore, it may still be pleaded by way of set-off. 3 T. R. 186.

Payment of money into court upon a contract, is only evidence from which a jury may infer the fact that the party made the contract; therefore, if they only state the fact of the payment in a special verdict, the court cannot draw the inference. 2 M. & S. 106.

In an action on a bill of exchange against the drawer, payment of money into court, generally, is an admission of his hand-writing. 2 H. B. 374.

Payment of money into court on a valued policy, only adınits a loss pro tanto. 1 Taunt. 419.

In assumpsit by the owner of a trunk of the value of 15l. which had been lost by the defendant, a carrier, the declaration stated a general undertaking by the defendant to carry goods safely for hire, and the defendant paid [*]5l. into court. Held, that the defendant could not give in evidence a notice, that he would not be responsible for more than 51. for any property lost, unless the same was booked and paid for according to the value," and that the trunk in question had not been so paid for; because the payment of money into court, upon a count stating a special contract, and narrowed the inquiry to the quantum of damages sustained by the breach thereof. 2 East, 214.

If the plaintiff, previous to the trial, has induced the defendant to believe that the only point to be tried would be a question of fraud, and has suffered him to prepare his evidence for that purpose; the court will not allow the plaintiff to object to the receipt of that evidence at the trial, on the ground of the contract having been admitted by the payment of money into court. 3 B. & P. 556.

And this is allowed in all personal actions, where the debt demanded is certain; as in debt. 1 Vent. 356. Sal. 597.

In indebitatus assumpsit. 1 Vent. 356.

So, in indebitatus assumpsit and quantum meruit; though the quantum meruit is uncertain. Dub. per Holt, but afterwards agreed. Sal. 597.

So, in covenant for nonpayment of rent. R. Sal. 596. Per C. B. 3 Geo.

So, in covenant to find diet, or pay 107. 2 Mod. Ca. 305.
In replevin where the defendant avows for rent. Sal. 597.

379.

In ejectment where the entry was for nor nonpayment of rent. Per C. B. 3 Geo.

2 Mod. Ca.

Sal. 597.

And now by the st. 4 Geo. 2. 28. if the tenant at any time before trial in ejectment pay to the lessor or his attorney, or into court, all the rent due and costs, all proceedings in the ejectment shall cease.

So, after judgment, execution shall be stayed. 2 Mod. Ca. 345.

Where a sum of money demanded is certain, or capable of being ascertained by computation, payment into court will be admitted, and the amount struck out of the declaration. 2 Burr. 1120.

In trover for money, he shall bring the whole money declared for into court. Anon. H. 5. G. Str. 142.

It may be brought into court in an action at the suit of an executor, and he shall

lose costs, but not pay them. Crutchfiled v. Scott, P. 1 G. 2. Str. 796. Barnes,

289.

If plaintiff is an administrator, and not so named, rule shall be discharged. Barnes,

280.

In debt for killing a hare, defendant may bring penalty and costs into court, (if no other count). Webb v. Punter, M. 18 G. 2. Str. 1217.

So, in covenant, where the breach assigned is a sum certain. Barnes, 284. In trover for a specific chattel of certain value, which must be the sole measure of damages, the thing demanded may be brought into court, or ordered to be delivered to plaintiff. Fisher v. Prince, M. 3 G. 3. 3 B. M. 1363.

But where quantity or quality is uncertain, or tort may enhance damages above real value, and no rule to estimate additional value, it shall not. 3 B. M. 1363. And though court orders the goods to be delivered to plaintiff, he may still proceed for damages at peril of costs. 3 B. M. 1363.

It is not of course, if plaintiff is an executor. Barnes, 279.

In replevin, after declaration and before avowry, proceedings may be staid, on payment of rent distrained for and costs. Barnes, 429.

Where a third person claims from the defendant the whole of the plaintiff's [*]demand, the court will stay proceedings on paying it into court. Secus, where the claim is part only. 1 B. & P. 161.

Where the defendant has received the sum in question by virtue of his public office, for example, as a navy prize agent, and there are other claimants besides the plaintiff, it may be paid into court for the use of those who shall appear entitled. Taunt. 166.

1

A foreigner having obtained judgment in assumpsit, and the defendant therein having a cross-action upon the case pending against the foreigner, for damages aceruing out of the same transaction, the court permitted the defendant to pay the debt on the former judgment into court, to abide the event of the suit then pending, but to be paid out immediately after the trial, he going to trial immediately. 1 Smith, 338.

The stat. 19 Geo. 2. c. 37. s. 7. which enables a defendant to pay money into court in actions on policies of insurance, (and therefore to make a tender before action,) is general, and not confined to marine insurance. 2 Taunt. 317.

Money was paid into court in an action upon the case for canal calls. 7 T. R. 36.

Principal and interest due on a bond payable by instalments, may be paid into 3 Burr. 1370.

court.

Penalty of a bastardy bond paid into court. 2 Bik. 1190.

Money was allowed to be paid into court in debt for penalties on the game laws. 2 Blk. 1052.

In general, in covenant, money cannot be paid into court, since the action is usually for uncertain damages; but on a special count for a liquidated sum, such as for nonpayment of rent, or of 51. per acre for ploughing up meadow-land, it may. 2 Blk. 837.

On an avowry for rent, the plaintiff may pay it into court. 1 H. B. 24.

But where the action is only for damages, defendant shall not be allowed to pay any sum into court upon motion; as in covenant. R. 1 Vent. 356.

If it be for not repairing. Sal. 596.

In trover for goods certain, he shall not be allowed to bring the goods into court. Sal. 597.

In replevin where he avows for damage feasant. 2 Mod. Ca. 379.

In an action for general damages, since a tender cannot be pleaded, the defendant cannot pay money into court: and therefore in an action for dilapidations. 8 T. R. 47.

In debt for a fine in a manor-court, money cannot be brought into court. Gold v. Freame, H. 1722. Bunb. 124.