counts. So, if the declaration contain special counts for work and labour, besides the general counts, the special counts may be struck out on motion, if they appear to be unnecessary :(f) and, in the King's Bench, where the plaintiff was an attorney, the rule was made absolute with costs. (f) And, if there be any doubt, the court will refer it to the master, to determine whether superfluous counts are introduced vexatiously.(g) But where there is a material difference between the counts, the courts will not determine upon affidavits, whether they are well founded in point of fact; for if not, the plaintiff will be sufficiently punished by being deprived of costs, on such of the counts as are found for the defendant :(h) Therefore, where the declaration, which was in debt for penalties, on the statute 9 Ann. c. 14, consisted of 480 counts, for money won at [*617] play of different *persons, at different times, and a rule nisi was granted for limiting the declaration to ten counts, the court of King's Bench, on showing case, discharged the rule with costs.(aa) So, where the declaration consisted of 286 counts, upon as many banker's notes for a guinea each, payable to bearer, with the common counts for money lent, and money had and received, the court refused to strike out the counts upon the notes; as it might have put the plaintiff to unnecessary difficulty in proof at the trial, or made it necessary for him to have a writ of inquiry on a judgment by default.(6) But in a similar case, the court made a rule by consent, to strike out all the counts but one, the defendant undertaking to permit all the other notes to be given in evidence, either before the master or a jury, under the count upon an account stated.(c) And where the counts do not appear on the face of them to be superfluous, the court of King's Bench will not order them to be struck out, merely on the ground that the causes of action are not included in the particulars of the plaintiff's demand. (d) In an action on a bill of exchange, the court of Common Pleas refused to strike out, as unnecessary, a count for interest; though, besides counts on the bill, the declaration contained the usual money counts.(e) So, where there were counts in a declaration for work and labour as an attorney, and for work and labour generally, that court refused to strike out the former counts as unnecessary.(ff) If a declaration contain slanderous or impertinent matter, the court will order it to be expunged:(gg) And where a declaration unnecessarily contains indecent language, the court it seems will order it to be referred for scandal and impertinence; and direct the master or prothonotary to tax exemplary costs.(hh) So, if a declaration be unnecessarily long, the court will expunge the superfluous matter: as where in an action of covenant upon an indenture, the plaintiff recites the whole of it, and not merely such parts as are necessary;(2) or where, in an action of trover, he sets (f) 1 Chit. Rep. 449, (a). 2 Chit. Rep. 299. 1 Dowl. & Ryl. 171, S. C. 7 Dowl. & Ryl. 383. (g) 1 Dowl. & Ryl. 508. (h) Turner and others, assignees, v. Kingston, H. 23 Geo. III. K. B. Hurd v. Cock, M. 36 Geo. III. K. B. Imp. K. B. 6 Ed. 754. (aa) Cowan v. Berry, E. 38 Geo. III. K. B. (b) Lane v. Smith, M. 46 Geo. III. K. B. 3 Smith R. 113, S. C. (c) 3 Barn. & Ald. 272. 1 Chit. Rep. 709, S. C. (d) 1 Chit. Rep. 448, 9, 50. (e) 1 Bing. 281. 8 Moore, 243, S. C. (f) 9 Moore, 358. 2 Bing. 184, S. C.; and see 9 Moore, 785. 2 Bing. 412, S. C. (99) 1 Chit. Rep. 676, and n. (a). (i) Cowp. 665, 727; and see 2 H. Blac. 123. (hh) 2 Wils. 20. 1 Campb. 196, in notis. out a long inventory of goods, with frequent and unnecessary repetitions and descriptions. So, in an action against forty-six defendants, the court of Common Pleas ordered the word "defendants" to be substituted for the names of the defendants, in all the places where they occurred, except the first.(k) In these cases, when the objection is clear, the courts will order the superfluous counts or matter to be expunged on motion, in the first instance; but otherwise they will refer it to the master,(7) or prothonotary,(m) and decide upon his report. In general, however, the court of King's Bench will not refer a declaration to the master, to strike out superfluous *counts; but will, on motion, order them to be struck [*618 ] out, if they appear vexatious. (a) And, in the Common Pleas, the motion may be made, after the defendant has taken the declaration out of the office, and pleaded to the action.(bb) But an application to strike out unnecessary counts should regularly be made before they are engrossed on record.(cc) *CHAPTER XXV. Of BRINGING MONEY into COURT. [ *619] THE practice of bringing money into court is said to have been first introduced in the reign of Car. II. at the time when Kelyng was chief justice, to avoid the hazard and difficulty of pleading a tender. (aa) And it is allowed in cases where an action is brought upon contract, for the recovery of a debt, (b) which is either certain, or capable of being ascertained by mere computation, without leaving any sort of discretion to be exercised by the jury.(c) In these cases, when the dispute is not whether anything, but how much is due to the plaintiff, the defendant may have leave to bring into court any sum of money he thinks fit; and the courts will make a rule, that unless the plaintiff accept of it, with costs, in discharge of the action, it shall be struck out of the declaration, and paid out of court, to the plaintiff or his attorney,[A] and the plaintiff, upon the trial, shall not be permitted to give evidence for the sum brought in:(d) which rule should (k) 1 New Rep. C. P. 289. (m) 2 Blac. Rep. 906. 1 Chit. Rep. 450, (a). (bb) Law v. Williamson, H. 31 Geo. III. C. P. (cc) 2 Bing. 453. 10 Moore, 152, S. C. (aa) 1 Ld. Raym. 255. 2 Salk. 597. 2 Str. 787. 5 Ed. 33, a, (2); but see R. H. 5 Jac. I. K. B. (b) Com. Dig. tit. Pleader, C. 10. (1) Cowp. 727. 1 Dowl. & Ryl. 508. (a) 1 Chit. Rep. 450. Imp. C. P. 7 Ed. 179. Cas. temp. Hardw. 207. 1 Wms. Saund. (c) 2 Bur. 1120. (d) Say. Rep. 196, 7. 2 Bur. 1121. 3 Bur. 1773. Imp. K. B. 10 Ed. 251, R. M. 5 Geo. III. in Scac. Man. Ex. Append. 217, 18; and see Append. Chap. XXV. § 1, 2, 3. [A] After a defendant has brought into court, on the common rule, as much money as he thinks proper, and the plaintiff has refused to receive it in satisfaction, the defendant is entitled to have the same considered as a payment made on the day on which it was brought in; he is answerable for further damages only; for he then stands on the same ground as if, on tendering money before the action, the plaintiff had refused to receive it, but had commenced his action, in which the tender was pleaded. Boyden v. Moore, 5 Mass. 365. And if the defendant pays money into court, the plaintiff goes on to trial, and a verdict is rendered against him, he neither pays nor receives costs for the time previous to the payment into court. Williams v. Ingersoll, 12 Pick. 345. be accompanied with the general issue, or other plea, to the residue of the demand.(e) Thus, in assumpsit, (f) or covenant, (g) for the payment of money, the defendant may bring money into court; and in covenant to find diet and lodging, or pay ten pounds, the court allowed him to bring in the ten pounds.(h) In debt for rent, the defendant may bring money into court in the King's Bench, (i) as well as in the Common Pleas,(k) and Exchequer ;(1) although, in the former court, it was refused, in the time of Lord Hardwicke ;(m) and in a case previous to that time, (n) the court said they never did it in debt. But there is a distinction between those actions of debt, wherein the plaintiff cannot recover less than the sum demanded, as on a record, specialty, or statute giving a sum certain by way of penalty;(0) and those actions wherein the plaintiff may recover less, [*620] rent,(p) as in debt for rent, (p) *or on simple contract :(aa) In the former, the defendant cannot bring money into court;(66) though he may move to stay the proceedings, on payment of the whole penalty and costs:(cc) but in the latter, the defendant has been allowed to bring money into court ;(dd) because the plaintiff does not recover according to his demand, but according to the verdict of the jury. When an action, however, is brought for several penalties on the game laws, the defendant, we have seen,(ee) may have leave to pay one penalty into court, leaving the plaintiff at liberty to proceed for the rest. And the defendant, by act of parliament, may bring money into court in debt, covenant, or other action on a policy of assurance, (f) or in an action for non-residence.(gg) In an action for general damages, upon a contract, (hh) or for a tort, (ii) or trespass, (kk) as a tender cannot be pleaded, so the defendant is not allowed to bring money into court: And it cannot be brought into court, in an action for dilapidations. (1) But in an action of assumpsit against a carrier, for not delivering goods, the defendant having advertised that he would not be answerable for any goods beyond the value of twenty pounds, unless they were entered and paid for accordingly, the court of King's Bench allowed him to bring the twenty pounds into court:(mm) So, money may be brought into court, in an action on the case for navigation calls. (nn) And where, in an action for general damages, the bringing of money into court is irregular, if the plaintiff take it out, he thereby waives the irregu (cc) Ante, 541. (ee) Ante, 541. (dd) 1 Vent. 356. 2 Salk. 596, 7. 2 Ken. 292. (f) Stat. 19 Geo. II. c. 37, 8 7. 3 Bur. 1773. 2 Taunt. 317. (hh) 1 Vent. 356. 2 Blac. Rep. 837. 2 Bos. & Pul. 234. 3 Bos. & Pul. 14. (W) 8 Durnf. & East, 47. (mm) Hutton v. Bolton, E. 22 Geo. III. K. B. 1 H. Blac. 299, in notis; Beardmore v. Boulton, H. 30 Geo. III. Excheq.; but see 2 Bos. & Pul. 234. And as to the liability of carriers, in consequence of such advertisements, see 1 H. Blac. 298. 2 East, 128. Esp. Rep. 177. 4 East, 371. 5 East, 507. 5 Barn. & Cres. 322. 10 Moore, 247; and for the mode of declaring thereon, see 2 East, 128. 4 Esp. Rep. 177. 6 East, 564. (nn) 7 Durnf. & East, 36. larity, and cannot afterwards have a verdict, unless he recover more than the sum brought in.(0) In an action for freight by a foreigner, there being a cross action against him for unliquidated damages, the court of Common Pleas refused to permit the freight to be paid into court, as a fund liable to payment of the damages when ascertained.(p) But where a separate commission had been sued out against A., and a joint commission against him and B., and the assignees under the first commission had recovered a verdict in trover against C., the court of King's Bench allowed the amount of the verdict to be brought into court, to abide the event of a petition to the Chancellor, to supersede the first commission.(q) In an action by an executor or administrator, the plaintiff not being liable to costs, the defendant was not formerly allowed to bring money into *court;(a) but now it is otherwise :(b) and the effect of the [*621 ] rule will be, not to make the plaintiff pay, but only to lose his subsequent costs. And, in actions against justices of the peace, (c) officers of the excise, (d) or customs, (e) commissioners of bankrupt,(ff) or officers of the army, navy or marines, (gg) for anything done in the execution of their offices," in case the defendants shall have neglected to tender any, or shall have tendered insufficient amends, before the action brought, they may, by leave of the court, at any time before issue joined, pay into court such sum of money as they shall see fit; whereupon such proceedings, orders and judgment shall be had, made and given, in and by such court, as in other actions where the defendant is allowed to pay money into court."(hh) There is said to be no precedent, where there are several defendants, for one to pay money into court.(2) Where there are several counts or breaches in the declaration, and as to some of them the defendant may bring money into court, but not as to the others, he may obtain a rule for bringing it in specially, upon some of the counts or breaches only. Thus, where an action of covenant(k) was brought upon a lease, for non-payment of rent, and not repairing, &c., the court of King's Bench made a rule, that upon payment of what should appear to be due for rent, the proceedings as to that should be stayed; and as to the other breaches, that the plaintiff might proceed as he should think fit. So, in covenant upon a charter-party, (1) the defendant was allowed to bring money into court, upon two of the breaches only; viz. for freight and demurrage. But in debt for the penalty of a charter-party, the court of Common Pleas discharged the rule for bringing money into court (m) and in another case, they refused to permit the defendant to pay (0) 1 Durnf. & East, 710, and see 1 Campb. 559, n. (p) 3 Taunt. 525. (b) 2 Str. 796. (e) Stat. 24 Geo. II. c. 44, 4. And note, this seems to have been the first statute, which allows money to be brought into court, in an action for general damages. (d) Stat. 23 Geo. III. c. 70, 8 33. (e) Stat. 24 Geo. III. sess. 2, c. 47, § 35, (repealed by 6 Geo. IV. c. 105.) 28 Geo. III. c. 37, 28. 6 Geo. IV. c. 108, 96. (gg) Stat. 6 Geo. IV. c. 108, (f) Stat. 6 Geo. IV. c. 16, 43. 96. (hh) See also the statutes 13 Geo. III. c. 78, 79. 13 Geo. III. c. 84, 81, & 3 Geo. IV. c. 126, 144, as to bringing money into court, by persons acting under the general highway and turnpike acts. And as to bringing it in, by persons acting in pursuance of the laws relative to larceny, &c., or malicious injuries to property, see the statutes 7 & 8 Geo. IV. c. 29, 75, and c. 30, ? 41. (i) 2 Blac. Rep. 1030. (k) 2 Salk. 569. 1 Wils. 75. Barnes, 284, but see 1 Vent. 356, contra; and see Pr. Reg C. P. 256. 2 Blac. Rep. 837. (m) Barnes, 285. money into court on all the counts in the declaration except the last, and to demur to that count.(n) If a defendant bring money into court upon some of the counts, and the plaintiff take it out, the latter is only entitled to the costs of those counts.(o) The motion for leave to bring money into court is a motion of course, and should regularly be made before plea pleaded ;(p) but it is fre[ *622] quently made, (a) and in some cases expressly authorised, (b) after plea, on obtaining a judge's order for that purpose and if there has been no delay, (c) the courts will give the defendant leave to withdraw the general issue, in order to bring money into court, and replead it, on payment of costs [A] And he has even been allowed to bring it in, after the granting of a new trial.(d) In the King's Bench, the motion paper being signed by counsel, the money should be paid to the signer of the writs, who acts in this instance as deputy to the master ;(e) and will give a receipt for the money, on being paid 208. for every 100l. and so in proportion for every greater or lesser sum, exceeding 101. and 28. for every sum under 107. beside 28. 4d. for the receipt.(f) The rule for bringing in the money is drawn up, in this court, by the clerk of the rules in term time, or within a week after, on the motion paper and receipt being left with him as instructions; but after a week from the end of the term, there must be a judge's order for drawing up the rule, which is granted of course, without a summons. In the Common Pleas, if the sum be under five pounds it may be paid in on a side-bar or treasury rule, which is granted of course by the secondaries; but if it amount to that sum or upwards, a serjeant's hand is necessary for obtaining the rule: and after a week from the end of the term, there must also be a judge's order for drawing it up. The rule in this court being taken to the prothonotaries' office, the clerk there will receive the money, and write a receipt in the margin, on being paid 1d. in the pound, and Is. 4d. for the receipt. On a plea of tender, with a profert in curia, the sum tendered must be paid to the signer of the writs in the King's Bench, or prothonotaries in the Common Pleas, who will give a receipt for it in the margin of the plea; and if not paid, the plaintiff may consider the plea as a nullity, and sign judgment.(g) If the defendant bring money into (n) Pr. Reg. 256. (0) 4 Durnf. & East, 579. 2 Taunt. 266. (a) 1 Durnf. & East, 711. (p) 1 Ld. Raym. 398. 1 Wils. 157. Barnes, 279. (b) Stat. 24 Geo. II. c. 44, 4, and see 7 Taunt. 33. 2 Marsh. 356, S. C., where, in an action against a magistrate, the defendant, after issue joined, was allowed to withdraw the general issue, pay money into court, and plead de novo. 3 Barn. & Cres. 159. 4 Dowl. & Ryl. 776, S. C. accord. (c) 2 Str. 1271. Barnes, 289, 362. (e) 1 Cromp. 3 Ed. 142. (g) 1 Str. 638. Barnes, 252. Ante, 565. (d) Per Cur. M. 29 Geo. III. K. B. (f) R. H. 5 Jac. 1 K. B. [A] Money paid into court is payment pro tanto. The plantiff can take it out, but the defendant cannot; where a defendant dies after the payment, the revival of the action against his executor, or even the commencement of a new suit, will not change the effect of the payment. Murray v. Bethune, 1 Wend. 191. If the defendant pays money into court, either upon the whole or any single count in the declaration, he must pay costs up to the time when the money is paid in, even although the plaintiff should proceed and recover no more than the amount paid in. 'State Bank v. Halcomb, 2 Halst. 193. If, in an action on a policy of insurance, the defendant pays the amount of the premium into court, which the plaintiff's attorney takes out, after informing the defendant of the intention to go for a total loss, he will not be concluded from proceeding for a total loss. Sleght v. Rhinelander, 1 Johns, 192. In an action, on a policy of insurance, the defendant may, after plea pleaded, bring what sum he pleases into court, with costs to the time, but not specifically as the premium on the policy. Dunlap v. Commercial Ins. Co., Ib. 149. |