mands, cannot be applied by the plaintiff to prove such one of them as he may elect at the trial.60

A tender upon which money is paid into court, admits the contract stated in the declaration as in other cases.61

Costs on payment of money into court.] Where money is brought into court, the plaintiff either accepts it with costs in discharge of the suit, or proceeds in the action: in the former case he should give notice of taxation and have the costs taxed, and serve the same on the defendant's attorney.62 The costs being taxed should be forthwith paid to the plaintiff, or his attorney; and if they are not paid, the plaintiff may proceed in the action; and proof of the rule to pay money into court, will of itself entitle him to a verdict with nominal damages: and this is the only course that he can take, for he cannot have an attachment, the rule being conditional and not obli gatory upon the defendant to pay the costs.64 But if the plaintiff, after money has been paid in, proceed to trial, otherwise than for non-payment of costs, we have already seen that unless he proves a sum beyond what is paid, the verdict is for the defendant ;65 and in such case the plaintiff will not only lose the costs which he would have been entitled to had he taken the money out of court, but he will be obliged to pay the costs of the action.66

The plaintiff is entitled to costs up to the time of the defendant's paying money into court, if he take it out at any time before trial, even if he proceed in the cause, and though he afterwards gives notice of trial which he neglects to countermand, whereby the defendant is entitled to judgment as in case of nonsuit ;67 but not if the defendant has obtained such

60 7 Taunt. 450. S. C. 1 Moore, 158.

61 3 Taunt. 95.

62 4 Term Rep. 12. 1 Tidd. Pract. 677. 1 Dunlap. Pract. 424. 63 1 Campb. 558. n.

64 2 Str. 1220.

65 Ante, p. 161.

66 1 Saund. 33. n. 2. 4 Term Rep. 10. 6 Taunt. 161.

67 8 Term Rep. 408. 486. 4 Term Rep. 11.

judgment:68 the subsequent costs are to be allowed to the defendant.69

drawn.

Where the plaintiff proceeds to trial, and a juror is with- Juror withdrawn by consent, the plaintiff is not entitled to costs; for whenever a juror is withdrawn, each party must pay his own

costs.70

is a consoli

In actions on policies of insurance, where there is a consoli- Where there dation rule, and money is paid into court, it seems that the dation rule. plaintiff is entitled to the whole costs of the causes not tried, up to the time when the money is paid into court, although he may not succeed in the cause which he proceeds to try, and although the defendant in that cause is entitled to the whole costs.71

Where the plaintiff proceeds in the action, and fails, the defendant will be allowed to satisfy his demand for costs out of the sum paid into court.72

TENDER AFTER SUIT BROUGHT.

73

The following provisions in the revised statutes, to which we have already alluded, are highly advantageous to defendants, and seem to have been intended to supersede the practice of paying money into court.74

ses.

"When any action at law shall be commenced for the re- In what cacovery of a sum certain, or which may be reduced to certainty by calculation, or for a casual or involuntary trespass or injury, the defendant, in any stage of the proceedings, before trial in such causes, or before such damages shall have been assessed, or before judgment rendered in an action of debt, may tender to the plaintiff, or his attorney, any sum of money

2 Maule & Selw. 335. 6 678. sed vide 7 Term. Rep. Taunt. 158.

1 Term Rep. 629. 8 Term.

Rep. 486.

73 Term. Rep. 657.

368.

72 Barnes, 287.

73 Ante, p. 156.

74 See Revisers' Reports, chap

72 Taunt. 361. 1 Tidd. Pract. ter 8 of Part 3. p. 190.

of plaintiff's

which such defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or proceeding, to the time of making such tender.75

Consequence "If it shall appear upon the trial of the cause, or upon the proceeding assessment of damages, that the amount so tendered, was sufficient to pay the plaintiff's demand, and the costs of the suit

Sum accepted to be de

or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendant for the costs incurred by him subsequent to such time.76

"If the action or proceeding be to recover damages, and it shall appear, that the sum tendered was a sufficient amends for the injury done, and for the costs, as before mentioned, the plaintiff shall not be entitled to recover any costs in any such action or proceeding after such tender, but shall be liable to the defendant for his costs incurred after that time."

"If any such tender be accepted by the plaintiff and he ducted. shall thereafter proceed in the action, the sum so accepted shall be deducted from the whole amount of the recovery, and judgment shall be rendered only for the residue; and an entry of such tender and acceptance shall be made on the record. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, shall be determined by the amount of such residue.'

9178

CHAPTER IX.

OF SET-OFF.

Common law practice.

ed.

At common law, if the plaintiff was indebted to the defendant in as much or even more than the defendant owed to him, yet he had no method of striking a balance: the only way of obtaining relief was by going into a court of equity.' This When alterinconvenience was remedied in England by the statute of 2. George II., the provisions of which were substantially incorporated in our former act for the amendment of the law. In the revised statutes, the cases and circumstances under which a set-off is allowable, are particularly enumerated.

It is provided, that "in the following cases, and under the following circumstances, a defendant may set off demands which he has against the plaintiff':

ses set-off

"1. It must be a demand arising upon judgment, or upon In what ca contract, express or implied, whether such contract be written allowed. or unwritten, sealed or without seal; and if it be founded upon a bond, or other contract having a penalty, the sum equitably due, by virtue of its condition, only, shall be set off:

"2. It must be due to him, either as being the original creditor or payee, or as being the assignee and owner of the demand:

"3. It must be a demand for real estate sold, or for personal property sold, or for money paid, or services done; or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation:

12 Burr. Rep. 820. 4 Burr. 21 R. L. 515. Rep. 2220.

"4. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant:

"5. It can only be allowed in actions founded upon demands which could themselves be the subject of set-off, according to law:

"6. If there be several defendants, the demand set off must be due to all of them jointly:

"7. It must be a demand existing against the plaintiff in the action, unless the suit be brought in the name of a plaintiff who has no real interest in the contract upon which the suit is founded; in which case no set-off of a demand against the plaintiff shall be allowed, unless as herein after specified:

"8. If the action be founded upon a contract, other than a negotiable promissory note, or bill of exchange, which has been assigned by the plaintiff, a demand existing against such plaintiff, or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of such assignment, may be set off to the amount of the plaintiff's debt, if the demand be such as might have been set off against such plaintiff or such assignee, while the contract belonged to him:

"9. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff, after it became due, a set-off to the amount of the plaintiff's debt, may be made of a demand existing against any person or persons who shall have assigned or transferred such note, or bill, after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him:

"10. If the plaintiff be a trustee for any other, or if the suit be in the name of a plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested: