558

ADMISSION BY PAYING MONEY INTO COUrt.

nullity (7). There are many other statutes which authorise pleas of payment of money into court, when actions are brought against persons for acts done by them in pursuance or under the authority of acts of Parliament (m).

§ 598. The salutary effect of these regulations has been much impaired, first, by not extending them to all personal actions whatever, with the single exception of the action for adultery, on which the plaintiff intends to found a subsequent application to Parliament for a divorce; secondly, by subjecting the defendant to the needless expense of obtaining counsel's signature to the plea, and, in many cases, of applying either to the Court on motion, or to a judge by summons, for leave to do that which he should always be permitted to do of his own accord; but chiefly, and this is the reason why the subject is here noticed, by allowing payment of money into court to be regarded as an admission of the cause of action. It is very true that recent decisions have, to a certain extent, remedied this last evil, and that now, where money is paid into court upon the general indebitatus counts, the payment amounts only to an admission that the defendant is liable, in respect of some one or more contracts or causes of action stated in the general counts, to the extent of the sum so paid in; and the plaintiff cannot apply that admission to any particular contract he may please to select, any more than the defendant (n). If, therefore, the plaintiff seeks to recover any damages or debt beyond the sum paid into court, he must prove not only that a larger sum was due, but also the existence of the contract on which he relies (0), as well

(1) 6 & 7 Vict., c. 96, § 2, and 8 & 9 Vict., c. 75, § 2, as to England; and 8 & 9 Vict., c. 75, §§ 1 and 2, as to Ireland.

(m) See ante, §§ 233-236.

(n) Archer v. English, 1 M. & Gr. 876, per Tindal, C. J.; Kingham v. Robins, 5 M. & W. 94, 102, per Alderson, B.; Stapleton v. Nowell, 6 M. & W. 9, 11, per id.; Seaton v. Benedict, 5 Bing. 28; Steavenson v. Corporation of Berwick, 1 Q. B. 154; 4 P. & D. 546, S. C.; Elgar v. Watson, C. & Marsh. 494.

(0) Archer v. English, 1 M. & Gr. 876, per Tindal, C.J.; Kingham v. Robins, 5 M. & W. 99-101, per Parke, B., overruling dicta thrown out by himself and Littledale, J., in Meager v. Smith, 4 B. & Ad. 673; 1 N. & M. 449, S. C. See also Goff v. Harris, 5 M. & Gr. 577, per Erskine, J.

ADMISSION BY PAYING MONEY INTO COURT.

559

as his separate right to sue on that contract (p); and if the action be brought against two or more defendants, he must further show their joint liability (q). Neither can he avail himself of his bill of particulars, in order to see on what ground the payment was made, because the declaration must exist independently of the particulars, and must be taken to have some meaning as well before particulars are delivered as afterwards (r). Much less can the joint payment of money into court by two defendants under the indebitatus counts be treated as an acknowledgment of their partnership, as alleged in a special count (s).

$599. If, however, the plaintiff declares upon a special contract, and the defendant meets the special count by paying money into court, such payment will still be regarded as a conclusive acknowledgment of the contract set forth in the declaration (t). The technical reasons on which this rule rests are, first, that the payment admits that something is due, and therefore must admit that the contract was made, by which alone anything is due from the defendant to the plaintiff (u); and, secondly, that the plea of payment of money into court is a plea in bar of the further maintenance of the action, and consequently amounts to an admission that the action was well commenced (x). The defendant, therefore, who has so pleaded, cannot object to the jurisdiction of the Court (y), or set up the non-performance by the plaintiff of a

(p) Kingham v. Robins, 5 M. & W. 100, per Parke, B.; 7 Dowl. 352, S. C. ; overruling Walker v. Rawson, 1 M. & Rob. 250, per Tindal, C. J.

(2) Archer v. English, 1 M. & Gr. 873; 2 Scott, N. R. 156, S. C., and also 9 Dowl. 21, S. C., nom. Archer v. Walker; Stapleton v. Nowell, 6 M. & W. 9 ; 8 Dowl. 196, S. C., overruling Ravenscroft v. Wise, 1 C. M. & R. 203; 2 Dowl. 676; 4 Tyr. 741, S. C.

(2) Kingham v. Robins, 5 M. & W. 100, per Parke, B., explaining and confirming Meager v. Smith, 4 B. & Ad. 673; 1 N. & M. 449, S. C. See also Russell v. Bell, 10 M. & W. 349, per Lord Abinger, 352, 353, per Alderson, B.; Goff v. Harris, 5 M. & Gr. 573.

(s) Charles v. Branker, 12 M. & W. 743, confirming Kingham v. Robins and Stapleton v. Nowell.

(t) Kingham v. Robins, 5 M. & W. 99, per Parke, B.; Archer v. English, to the effect of pa

into Bise of

1 M. & Gr. 876, 878.0 (u) Stapleton v. Nowell, 6 M. & W. 11, per Alderson, B.chauge See Tattersall a (x) Thompson v. Jackson, 1 M. & Gr. 244, per Tindal, C. J. Parkinson 11, (y) Miller v. Williams, 5 Esp. 22, per Lord Ellenborough.

11 Jur 657

560

ADMISSION BY PAYING MONEY INTO COURT,

condition precedent (z), or urge that the action has been brought too soon (a), or deny the plaintiff's claim to the character in which he sues (b), or move to arrest the judgment on account of the insufficiency of the declaration (c), or contend that the agreement is not in writing, and signed in accordance with the Statute of Frauds (d), or rely on the insufficiency of the stamp (e), or insist on the plaintiff producing the attesting witness (ƒ), or plead other pleas denying the existence of the same cause of action (g), unless he be permitted to do so by some particular statute, or give evidence, in mitigation of damages, of facts which would bar the plaintiff's recovery; as, for instance, if the action be brought for discharging the plaintiff from service, the defendant, who has paid money into court, cannot, in mitigation of damages, justify the discharge on the ground of the plaintiff's misconduct (h).

$ 600. In applying the above rule to particular cases, strict attention must be paid to the two following points. First, payment of money into court admits the special contract set out in the declaration, only to that extent to which the plaintiff is bound to prove it; for it would be obviously unjust if the admission were to tie the defendant when the plaintiff would be loose. For instance, in Cooper v. Blick (i), the plaintiff declared upon a contract by the defendants to employ him, to wit, in the capacity of editor of a newspaper, at a certain salary, to wit, at the rate of 4007. per annum. The defendants paid money into court, and by so doing were held to have admitted the capacity in which the plaintiff had engaged to serve them, but not the amount of salary which they had agreed to pay him. Both averments were laid under videlicets;

(b) Lipscombe v. Holmes, 2 Camp. 442, per Lord Ellenborough.

(c) Wright v. Goddard, 8 A. & E. 144, 148, 150.

(d) Middleton v. Brewer, Pea. R. 15, per Lord Kenyon.

(e) Israel v. Benjamin, 3 Camp. 40, per Lord Ellenborough, confirmed after

wards by the full court.

(ƒ) Randall v. Lynch, 2 Camp. 357, per Lord Ellenborough.

(g) Thompson v. Jackson, 1 M. & Gr. 242.

(h) Speck v. Phillips, 5 M. & W. 279; 7 Dowl. 470, S. C.

(i) 2 Q. B. 915.

ADMISSION BY PAYING MONEY INTO COURT.

561

but the court applying the true test, namely, what must the plaintiff have proved, had non assumpsit been pleaded, decided that the former averment was material, and the latter immaterial. In discussing the effect of the videlicet, Mr. Justice Patteson observed, that it could not make that immaterial, which was in its nature material, though its omission might render that material, which would otherwise not be so; and he illustrated these propositions by pointing out, that a videlicet could not make the sum in a bill of exchange immaterial, because that was matter of description, but its omission in the declaration before him would have bound the plaintiff to the precise rate of salary stated, and the admission of the defendants by payment into court would then have bound them in the same manner (i).

§ 601. The other point deserving attention is perhaps only another mode of stating the proposition just adverted to. It is this: that though payment into court admits the entire contract declared on, as also the specific breach in respect of which the payment is made, it does not admit any damages on that breach beyond the sum paid in, still less does it admit any other breach to which the payment does not apply. Thus, payment of money into court upon a count on a valued policy of insurance, which states a total loss by capture, admits the contract and the capture, but not the total loss, and the plaintiff therefore must still prove that he has suffered damage from the capture beyond the sum paid (k). So where the declaration, after stating that the defendant and another were indebted to the plaintiff in a certain sum, to wit 2507., but that the debt was barred by the Statute of Limitations, averred that defendant afterwards, and within six years from the commencement of the suit, signed a written promise to pay his proportion of the debt, which proportion amounted to a certain sum, to wit a moiety of the debt, and then assigned non-payment as a breach, it was held that the defendant, by paying 10s. into court, admitted the contract and breach, but disputed the amount

(i) 2 Q. B. 918, 924. See Guardians of Banbury Union v. Robinson, 4 Q. B. 919. (k) Rucker v. Palsgrave, 1 Camp. 557, per Sir James Mansfield; 1 Taunt. 419, S. C.; Everth v. Bell, 7 Taunt. 450.

562

PLEA OF TENDER-PLEA IN ABATEMENT.

due (1). Again, payment into court in an action upon a promissory note, payable by instalments, admits only that the sum paid was due upon the note, and does not preclude the defendant from pleading the Statute of Limitations as to any further sum (m); nor, in short, is the defendant, by so paying, debarred from taking any other objection, in order to limit the operation of the contract declared on, and to prevent the plaintiff from recovering more than the actual amount paid (n).

§ 602. The service of a summons to show cause, why the defendant should not be permitted to pay a certain amount into court, will be some evidence of liability to that extent, though unless it be followed up by a corresponding plea of payment, it will by no means be conclusive (0). The rules stated above, as governing the effect by way of admission of paying money into court, apply equally to the plea of tender (p), and it is therefore unnecessary to repeat them here with particular reference to that plea.

§ 603. How far a plea in abatement (q) admits the defendant's liability is not very distinctly ascertained, but the better opinion is, that when such plea is not supported by proof, the case remains the same as if the defendant had suffered judgment to go by default (r); that is, if the action be one wherein the judgment is final, it admits the debt, but if the judgment be interlocutory, it merely admits a liability to nominal damages. In this last class of cases, therefore, the plaintiff must still prove the amount of his demand (s); and if this arises from any contract which he has

(7) Lechmere. Fletcher, 1 Cr. & Mee. 623, 627, per Bayley, J.; 3 Tyr. 450, S. C.

(m) Reid v. Dickons, 5 B. & Ad. 499; recognised by Patteson, J., in Shearwood v. Hay, 5 A. & E. 390.

(n) Cox v. Parry, 1 T. R. 464.

(0) Lawson v. Mangles, 2 M. & Rob. 427, per Parke, B.; Williamson v. Henley, 6 Bing. 305, per Tindal, C. J.

(p) Edan v. Dudfield, 1 Q. B. 304, per Lord Denman; Cox v. Brain, 3 Taunt. 95; Middleton v. Brewer, Pea. R. 15; Bulwer v. Horne, 1 N. & M. 117; Jewell v. Wyatt, 1 W. W. & H. 47; Willis v. Langridge, 2 Har. & W. 250.

(9) See 3 & 4 Will. 4, c. 42, §§ 8, 9, and 10.

(r) Pasmore v. Bousfield, 1 Stark. R. 298, per Lord Ellenborough.

(s) Weleker v. Le Pelletier, 1 Camp. 481; Morris v. Lotan, 1 M. & Rob. 233.