to what the defendant contends and believes, he is under liability to the plaintiff," did not involve any substantive statement of fact, or render the defence conditional only upon the plaintiff's admitting its truth, that is, accepting the amount in full satisfaction. So that in effect the plea was treated as amounting to nothing more than a plea of payment into Court, coupled with a denial of the cause of action in respect of which it was pleaded; and that being so, the cases, to which I shall presently refer somewhat more in detail, seem to establish that no change has been made by the Judicature Act as to the effect of such a payment, but that the money so paid in becomes absolutely the property of the plaintiff, although it may turn out upon the trial of the action that the plaintiff had no cause of action at all, and was consequently not entitled to the money so paid in. In England the rules have been amended so as to prohibit the taking out of the money where the cause of action is denied until the case is finally disposed of.

The question here is, whether the plea does not go further; and for the purpose of the argument I will assume that this plea does state in the clearest and most explicit manner that the money is deposited in Court not to be treated as the plaintiff's except in the one contingency, that his claim is established, when, and to the extent to which it may be established, it is appropriated to the satisfaction of the plaintiff's claim.

I do not say such would be a good plea under the statute, nor, for that matter, that it would be a plea at all; but, granting that it is a nullity, I am at a loss to understand upon what principle the plaintiff becomes entitled to appropriate the money so paid in, and which he is notified is so paid in to abide the result of the suit.

Berdan v. Greenwood, 3 Ex. D. 251, as I read it, decides nothing more than this, that since the Judicature Acts a plea of payment into Court, at the same time that the cause of action in respect of which it is paid in is denied, is allowable.

It is to my mind a most beneficial change, and I have no doubt will be attended with good results, for it must have been the experience of all of us when in practice that we were frequently induced to advise against a payment into Court of a sum which our instructions led us to believe ample to satisfy the plaintiff's demand, because we felt we were thereby abandoning a safe ground of defence in denying in toto the plaintiff's cause of action.

But the Judicature Act and the orders enacted no new law conferring any further rights of defence by paying money into Court than formerly existed, except that it enabled a defendant to do so without abandoning any answer he might have to the cause of action in respect of which it was pleaded, leaving the plaintiff at liberty, as before, to take the money out of Court in satisfaction of his entire cause of action, and to sign judgment and tax his costs, or to take it pro tanto, and go on with the action for the purpose of recovering something more.

In Goutard v. Carr, in the Court of Appeal, to be found in a note to Wheeler v. The United Telephone Co., 13 Q. B. D. 597, the plea was not guarded as it is in the present case; but in addition to the denial of the plaintiff's cause of action, the plaintiff brought into Court a sum, which he alleged to be sufficient to satisfy the plaintiff's claim. I have no doubt that in that case it was an unqualified payment into Court, which entitled the plaintiff at once to take it out and go on for the difference claimed; and as the payment operated so far as that portion of the defence was concerned as an admission of liability, I think the conclusion arrived at as to the disposition of the costs was correct; but in delivering judgment, some of the Judges used expressions which apparently countenance the view for which the plaintiff here contends, viz., that, although the payment is accompanied by an unequivocal and explicit statement in the plea that the defendant not only denies the plaintiff's cause of action, but brings money into Court, to be paid over only in the contingency of the plaintiff obtaining judgment, the condition is to be

disregarded, and that the plaintiff becomes at once entitled to take out the money.

I can understand that such a plea may be improper, and liable to be objected to as a plea of payment into Court not warranted by the statute, and I can understand that the officer of the Court would be justified in refusing to receive it; but I confess myself at a loss to understand, why the mere fact that the officer does not object to receive it, and does receive it, can entitle the plaintiff to appropriate it when he has been notified, as clearly as language can express it, that it is not intended to be paid

to him.

Whatever may be the effect primâ facie, and without more, of paying money into Court, under order 26, must necessarily be controlled (whether the pleading be good or bad) by the express statement made in the notice contained in it, that it is paid into Court to abide the result of the litigation, and is to be paid over to the plaintiff only in the event of a decision in his favour. If the argument be good, it must amount to this, as I have already suggested, that however guarded may be the language in which the payment is made, for the simple reason that it is paid in under a rule which authorizes the payment out to the plaintiff of moneys paid in under it, the plaintiff becomes entitled to receive and retain it.

I do not think the law can be so unreasonable, nor do I think the eminent Judges whose dicta I have quoted would have used the language they did, if the precise case we are now considering had been before them for decision; but until compelled so to decide by a decision binding upon me, I must decline to do so. The officer, no doubt, would be protected, because it is no part of his duty to scrutinize the pleading.

It is not a plea of payment into Court within the meaning of the statute and the order; but although irregular and, so far as I can judge, a useless procedure, I can see nothing whatever to warrant the plaintiff in construing a conditional payment into Court as an absolute one.

In Wheeler v. The United Telephone Co., above referred to, the plea was simply a payment into Court, with a denial of the cause of action in respect of which it was pleaded.

In the present case I think the language of the plea is sufficiently explicit, shewing not merely a denial of the cause of action, but a statement that, if that should be proved to exist, the damages do not exceed a certain sum, and then bringing voluntarily into Court a sum sufficient to pay those damages if awarded, to my mind an unnecessary proceeding, and not strictly the subject of a plea at all, although I can imagine a case in which the power thus to pay in money might be useful, as for instance, when a defendant being suddenly compelled to leave the country, and being apprehensive of arrest, might anticipate any unpleasant proceeding of that nature by voluntarily bringing the money into Court to await the result; but although not strictly pleadable, it may well be regarded as a notice to the plaintiff that I have paid this sum into Court under the only machinery which the Court allows, but I wish you to be under no misapprehension about it. It is not paid in absolutely and unconditionally, but will be there ready to answer your demand if you establish it. To hold that, under such circumstances, a plaintiff can take the money out without complying with the condition, and that the Court is powerless to compel its restitution would, as it appears to me, be a return to technicalities of the strictest kind. I think, therefore, that unless the plaintiff can succeed upon his cross-appeal, there should be a reversal of the judgment below, and an order upon the plaintiff to restore the money withdrawn, and interest.

Upon the subject of the cross-appeal I have felt great doubt, not because I questioned the soundness of the learned Judge's views upon the law as laid down in his judgment, but because I have not been clearly convinced of its application to the facts of this case, or that such a defence was open upon the pleadings.

No such defence was in the pleader's mind when he drew the answer, which seems to assume that there would be no defence, but for the agreement of the plaintiff to look to Knight for the payment of the balance. If that defence were not established, or, as the defendant puts it, "if he, the defendant, is still liable for the payment of that balance," he brings money into Court. I should have thought, therefore, that the defendant intended to rely upon that as his only defence, failing which the plaintiff would be entitled to the money. As my learned brothers, however, have come to the conclusion that the question of liability is still open, even if the defence, apparently relied upon by the defendant, fails, and that there was no liability under the circumstances to make good the loss, I have not thought it necessary to go into the evidence, as my opinion cannot affect the result. I therefore express no opinion upon that branch of the case.

In the result the cross-appeal fails, and the plaintiff having failed to establish any cause of action, should be ordered to bring into Court the money improperly withdrawn.

PATTERSON, J. A.-An agreement was made between the defendant and the plaintiff, as assignee in insolvency of the estate of John Lorne McDougall & Brother, respecting the sale of timber limits, of which the defendant owned one undivided half, and the plaintiff the other undivided half subject to a charge in favour of the defendant. The defendant was to sell the limits, pay himself one half of the price received, and pay over the other half to the plaintiff, after deducting from it his claim against the insolvent estate, which was something over $58,000. But if some 48,000 feet of timber belonging to the estate, which was in the hands of A. F. A. Knight, of Quebec, for sale, should be sold before the sale of the limits, the amount realized therefrom was to be deducted from the $58,000 claim of the defendant.