said [first count of the] declaration mentioned, in full satisfaction and discharge of all the said causes and rights of action therein mentioned; (u) and this the defendant is ready to verify, (x) &c. [Counsel's signature.

2. Plea of Payment of part of a Claim. (y)

In the Q. B. [or "C. P." or " Exch. of Pleas."]

And the defendant, by to the sum of £25, (2) parcel of the said sum [or " sums"] of money in the said declaration [or "second and third counts of the said declaration,” (a)

as the case may be] mentioned, and the said causes of action in respect thereof, (b) says that after the accruing of the said several causes of action in the introductory part of this plea mentioned, * and before the commencement of this suit, to wit, on [&c. any day before date of declaration], he paid to the plaintiff, and the plaintiff then accepted and received from the defendant, divers sums of money, to wit, to the amount of £25, (c) in full satisfaction and discharge of all the causes and rights of action therein mentioned; and this the defendant is ready to verify, &c. [Counsel's signature.

3. Replication denying the Payment. (d)

6

And the plaintiff, as to the plea of the defendant by him [secondly] above pleaded [if the plea be to part as in Form 2, add here" to the sum of £25, parcel of the said sum of money in the said declaration [or second and third counts of the said declaration'] mentioned and the said causes of action in respect thereof," following the statement in the introductory part of the plea] says that the defendant did not pay to the plaintiff, nor did the plaintiff accept or receive (e) from the defendant, the said sums of money in the said [second] plea mentioned, in satisfaction or discharge of the causes and rights of action therein mentioned, in manner and form as the defendant hath above alleged; and this the plaintiff prays may be inquired of by the country, &c.

above form, to a sum of money parcel of several counts, it is not necessary to specify to how much of each cause of action the payment pleaded is meant to apply; Mitchell v. Townley, 7 A. & E. 164; Beesley v. Dolly, 6 B. N. C. 37.

(b) This is necessary when the plea is not pleaded to a whole count, inasmuch as the plea in the body of it answers not only the £25, but the damages accrued by reason of the non-payment thereof; see Henry v. Earl, 8 M. & W. 228; Wheeler v. Senior, 7 M. & W. 568, per Parke, B.; S. C. 9 Dowl. 270. If any part of the latter damages are not answered by the pleas, the plaintiff might sign judgment for them, ibid. ; and see Hudson v. Fossett, 7 M. & G. 348.

(c) When the claim in the declaration is of a nature not to carry interest, and there has been no written demand of it (ante, 46, obs. 7), the damages for the non-payment of a debt will be only nominal, and this sum may then agree with that mentioned in the introductory part of the plea, as the plaintiff cannot institute or carry on an action for nominal damages, Beaumont v. Greathead, C. P. Hil. T. 1846; but where interest is due as da

mages the plea should cover it, see Hudson v. Fossett, 7 M. & G. 348. Aliter, where the interest is due as a debt. The defendant need not prove payment of the whole sum stated in the plea, if he prove payment of sufficient to cover plaintiff's real demand that will suffice, Falcon v. Benn, 2 Q. B. 314; and if he prove less than the sum stated in the plea, he will be allowed so much in reduction of damages, Lord v. Ferrand, 1 Dowl. & L. 630.

(d) When necessary to new assign, ante, p. 367. Under this replication the plaintiff might show, that althongh the money was really paid to him, yet that subsequent facts occurred which annulled the effect of that payment; as that the defendant became bankrupt, and the assignees recovered back the money from the plaintiff as having been paid by way of fraudulent preference; Pritchard v. Hitchcock, 6 M. & G. 151.

(e) A replication that" defendant did not pay nor did plaintiff receive," was held good on special demurrer, Webb v. Weatherby, 1 B. N. C. 502; but a traverse of the acceptance only, would suffice, as under it both the payment and the acceptance would be in issue, Ridley v. Tindall, 7 A. & E. 134.

4. Plea to a Declaration containing an indebitatus Count, and an Account stated; that the Debts stated in those two Counts are one and the same Sum, and Payment or other Defence to that Sum. (f) 1. Non assumpsit or other appropriate pleas.] And [for a further plea] as to the sum of £, parcel of the said sum of money in the [first] count mentioned, and as to the sum of £, parcel of the said sum of money in the [last] count mentioned, the defendant says that the said sum of £— so found to be due to the plaintiff on an account stated as in the said [last] count mentioned, is the same sum of £, parcel of the said sum of money in the said [first] count mentioned; and that the said two sums of £— each are one and the same debt of £, and not other or different debts of £——, and that the said account stated was stated of and concerning and included the said sum in the [first] count mentioned, and no other sum or cause of action whatever.

And the defendant further says that after the making of the promises in the introductory part of this plea mentioned [proceed as in Form 2, from the asterisk, observing the notes to that form.

5. Plea of Payment after Action brought.(g)

1. Non assumpsit or other plea according to the facts, except as to the sum paid.] And as to the said sum of [£20], parcel, &c., and the said causes of action in respect thereof, (h) the defendant says that the plaintiff ought not further (i) to maintain his aforesaid action thereof against him, because he saith that after the commencement of this suit [" and before the plaintiff declared therein as aforesaid,” if such be the fact,] to wit, on [&c.], the defendant paid to the plaintiff, and the plaintiff then accepted from the defendant, a large sum, to wit, the sum of [£25], (k) in full satisfaction and discharge of all the said causes of action as to the said sum of [£20], parcel, &c.; and this the defendant is ready to verify, wherefore he prays judg

(f) See observations, &c. "Account Stated," ante, 240; and see ante, p. 327, note (r). This mode of pleading to the account stated was held good on special demurrer by the Court of Q. B. in Gattie v. Field, May 1, 1846, H. Hill for the defendant, Pearson counsel for the plaintiff; and by the Exchequer in Hammond v. Dayson, April 29, 1846.

(g) See notes (u) and (1), ante, 372, and notes (b) and (c), 373. As to when defendant may settle an action without the concurrence of the plaintiff's attorney, see 1 Chit. Arch. Prac. 87, 8th ed; Quested v. Callis, 10 M. & W. 18; Clarke v. Smith, 6 M. & G.

(h) This is correct; Henry v. Earl, 8 M. & W. 228; ante, 23, note (1).

(i) See ante, 25, note (t).

(k) It seems that the plea would not be bad if the sum mentioned bere were the same sum as that to which the plea is pleaded; ante, 373, note (c); Beaumont v. Greathead, 15 L. J. 130, C. P. But of course, as the plaintiff acquires a right to costs after writ issued, Francis v. Crywell, 5 B. & Ald. 886, Lee v. Levy, 4 B. & C. 390, it would require strong proof to show that the plaintiff accepted the amount of the debt only in full satisfaction. See also Corbett v. Swinburne, 8 A. & E. 673.

ment if the plaintiff ought further to maintain his aforesaid action thereof against him, &c. [Counsel's signature.

PAYMENT INTO COURT.

OBS. By rules T. T. 1 Vict. 1838, where money is paid into Court, such payment shall be pleaded in all cases and as near as may be in the following form, mutatis

mutandis.

These rules are founded on the statute 3 & 4 W. 4, c. 42, s. 21, whereby it is enacted," that it shall be lawful for the defendant in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant), by leave of any of the superior Courts where such action is pending, or judge of any of the superior Courts, to pay into Court a sum of money by way of compensation or amends, in such manner and under such regulations as to the payment of costs and the form of pleading, as the said judges or such eight or more of them as aforesaid shall, by any rules or orders by them to be from time to time made, order and direct."

See the law on this plea in " Torts, &c." post.

By the New Rules on Pleading, reg. 18, " no rule or judge's order to pay money into Court shall be necessary (except under the 3 & 4 W. 4, c. 42, s. 21), but the money shall be paid to the proper officer of each Court, who shall give a receipt for the amount on the margin of the plea, and the said sum shall be paid out to the plaintiff on demand." As to the practice, &c., see 2 Chit. Arch. 8th ed. vol. ii. c. ix.

Care must be taken to pay into Court a sum sufficient to satisfy the full claim to
damages to the time the plea is pleaded. If interest be claimable, it must be
calculated to the time of payment, and not merely to the time the writ was
issued; Kidd v. Walker, 2 B. & Ad. 705; 1 Dowl. 331, S. C. If money be
paid into Court, but the defendant omit to plead the payment, the defendant is
not entitled to costs; Adelaide v. Booth, 1 Bing. N. C. 693. An amendment
by adding a plea of payment, or by increasing the sum before paid in on a plea
of payment, would in general be allowed on terms. If money be offered by the
defendant and refused by the plaintiff, on a summons before declaration (as to
which see 2 Arch. by Chit. 8th ed.; Cumming v. Columbino, 6 Dowl. 373;
Parsons v. Pitcher, ibid. 432,) the defendant will not be entitled to the sub-
sequent costs unless such money be afterwards paid into Court on a plea; Gover
v. Elkins, 3 M. & W. 216; S. C. 6 Dowl. 335; 4 B. N. C. 306, S. C. But if
plaintiff refuse to accept the money on summons, and afterwards take it out of
Court, it is considered primâ facie as vexatious conduct on his part, and there-
fore disentitling him to the costs after the offer, unless explained. See Willis v.
Darke, Tyr. & Gr. 503; Jones v. Owen, 1 Dowl. 565; 2 C. & J. 476, S. C.;
Hale v. Baker, 2 Dowl. 125; Kelly v. Flint, 5 Dowl. 293; as by showing on
affidavit that he could not sooner ascertain the amount of damages, Ackroyd v.
Reed, 5 M. & W. 542; but the Court will not interfere to give defendant his
costs unless he have made a previous application to the master, Roe v. Cobham,
6 Dowl. 628. On the other hand, an abandoned summons of the defendant
offering more than he afterwards pays into Court, may be used as evidence
against him at the trial: Dommett v. Young, 1 Car. & M. 465.

Effect of, as an admission.-See in general Roscoe on Evid. 6th ed. p. 45; Stark.
Evid. 3d edit. p. 14; 2 Arch. by Chit. 8th ed. vol. ii. ch. ix.

1. When pleaded to an indebitatus count] It admits that defendant was indebted
on the causes of action as described in those counts to the extent of the money paid
in on them, Kingham v. Robins, 5 M. & W. 94; but no further, though the
plaintiff prove a single contract exceeding in value the amount paid into Court,
Steavenson v. Corporation of Berwick, 1 Q. B. 154; Goff v. Harris, 5 M. & G.
573; it admits also the validity of every species of claim mentioned in the par-
ticulars accompanying the counts on which it is paid in, and that some damages
are due on each, Elgar v. Watson, 1 Car. & M. 494; and it admits the plain-

tiff's character in which he sues, Lipscombe v. Holmes, 2 Camp. 441; and his sole right to the money sued for, Walker v. Rawson, 1 Mood. & Rob. 250; S. C. 5 C. & P. 486; and that the defendants are properly sued jointly, Ravenscroft v. Wise, 1 C. M. & R. 203; if the plea be pleaded by all the defendants, Stapleton v. Noel, 6 M. & W. 9; S. C. 8 Dowl. 196; aliter if pleaded by only one defendant, Elliot v. Morgan, 7 C. & P. 334; it also admits that the action is not brought too soon, Harrison v. Douglas, 3 A. & E. 396; but all these admissions only operate to the extent of the amount paid into Court, Archer v. English, 1 M. & G. 873.

2. When pleaded to a special count.]—It admits the contract as laid, and therefore that it is properly stamped, &c., Israel v. Benjamin, 3 Camp. 46; and that nominal damages are due on it, Archer v. English, 1 M. & G. 873; and this the defendant cannot give evidence to controvert, Lloyd v. Walkey, 9 C. & P. 771; still less will he be allowed to give evidence of facts under this plea even in mitigation of damages, which, if pleaded before, would have been a bar to the action, Speck v. Phillips, 5 M. & W. 279; S. C. 7 Dowl. 470; and it admits all the material, but not the immaterial, averments in the declaration, as sums of money laid under a videlicet; Cooper v. Blick, 2 Q. B. 915. In use and occupation it admits plaintiff's title and his sole title; Dolby v. Iles, 11 A. & E. 335; and see Attwood v. Taylor, 1 M. & G. 280. If paid in on a promissory note payable by instalments, it only admits the amount of instalments as due which the money paid in will cover, and does not preclude the statute of limitations being pleaded to the others; Reid v. Dickons, 5 B. & Ad. 499; Jourdain v. Johnson, 2 C. M. & R. 566.

Where some money is due on the indebitatus counts, and the declaration contains also special counts, as to which the defendant wishes to make no admissions, he may secure that object by expressly restricting the plea of payment into Court to the former counts; Charles v. Branker, 11 M. & W. 743; S. C. 1 Dowl. & L. 889; Bonne v. Thompson, 4 Q. B. 543. Where the plaintiff has two counts in his declaration, upon either of which he can recover his demand, as a count for goods sold, and upon an account stated as to the price, it suffices to pay money into Court upon one only of such counts; Early v. Bowman, 1 B. & Ad. 89; Stafford v. Clarke, 2 Bing. 377; 1 C. & P. 703, S. C.; Evereth v. Bell, 7 Taunt. 450; but see note, p. 327, and note (ƒ), p. 374.

As to pleading payment into Court where the debt is under 40s. see Farrant v. Morgan, 3 Dowl. P. C. 792; S. C. 2 C. M. & R. 252; or recoverable under a Court of Requests Act, Turner v. Barnard, 1 M. & W. 580; S. C. 5 Dowl. 170; and see Jordan v. Berwick, 9 M. & W. 3; S. C. 1 Dowl. N. S. 102. The plea of payment into Court puts the plaintiff on proof of a demand beyond the amount paid into Court. The defendant has no evidence to adduce that he has paid in the money. Difference between a plea of tender and one of payment of money into Court; Turner v. Crossley, 3 M. & W. 43.

1. Plea of Payment into Court. (1)

The defendant, by his attorney, as to the said causes of action in the declaration mentioned, except (m) as to the sum of £- [the sum paid in], parcel of the said sums of money in the said [" second and third"] counts mentioned, (n) and the causes of action in respect thereof, says [non assumpsit

(1) Date, entitling, &c. ante, 21. See form to an action by assignees of a bankrupt, Clarke v. Nicholson, 6 C. & P. 712.

(m) Pleas in denial will not be allowed to any part of the cause of action covered by the plea of payment into Court; Thompson v. Jackson, 1 M. & G. 242; S. C. 8 Dowl. 591. Effect of so pleading, Fischer v. Aidé, 3 M. & W. 486; S. C. 6 Dowl. 594; and see

Twemlow v. Askey, 3 M. & W. 495; S. C.6
Dowl. 597.

(n) It is not necessary to specify how much of the sum paid into Court is meant to be applied to each particular count: Jourdain v. Johnson, 2 C. M. & R. 564; Marshall v. Whiteside, 1 M. & W. 192. Exception in the case of a bill, post, Form 4, note (a), 378.