§ 10. The deft. gave a bond for £40, payable by £5 а year; allowed to bring money into court in an action upon it; 2 Stra. 814, Bridges v. Williamson. Cн. 177. v. Hartshorn; § 11. In a declaration, containing a count on a policy of 3 Bos. & P. insurance, also the money counts, the deft. paid money 556, Muller into court, generally, on it. The plt., by his conduct, before cited 1 Phil. the trial, induced the deft. to believe the only point to be Evid. 150. tried, was a question of fraud, and the deft. prepared accordingly his evidence; and the court would not allow him to object to the receipt of that evidence at the trial, on the ground the deft. had admitted the contract, by paying money into court: this shews how material it is to conduct fairly. § 12. If the declaration be on contract, and money is paid 2 Bos. & P. into court, it is an admission of it in every transaction, which 550, Bennett is capable of being turned into a contract by the assent of ". Francis. the parties. Hence, where a deft. possessed himself of the plt's. goods, and sold a part, and kept the rest in specie, paid money into court generally, on a declaration, containing a count for goods sold and delivered: held, the deft. admitted the transaction to have been converted into a contract; and that the plt. was entitled to recover the value of all the goods, on this count, for goods sold and delivered. The money was paid in, as well on that count as the others, and so on the general principle, admitted the contract laid in it; and see s. 13, and 1 Phil. Evid. 150. lan.--5 Burr. § 13. Paying money into court on a count, on a special 2 East, 128, contract, admits it, and the inquiry is limited to the amount Yates v. Wilof damages sustained by the breach of it. Hence, if the 2640.-2 D. plt. declare, as on the deft's. general undertaking to carry & E. 275.-1 goods for hire, on which he pays £5 into court, he cannot D. & E. 464. be admitted to prove the contract was, that he should not be D. & E. liable for goods lost to a greater value than £5, unless en- N. P. 134, tered and paid for accordingly; yet, if no money had been 557. paid into court, the plt., on such evidence, must have been nonsuited. Peake's L. E. 202, 203; see Ch. 175, art. 6, sect. 33, 34. 579.-1 Cam. v. Crickett. § 14. If money be paid into court, it only admits a legal 1 Bos. & P. demand, if one in the declaration to which it may apply, 264,Ribbans though there be an illegal one also. In such case, money SO 2 H. Bl. 374. paid into court, cannot be applied to an illegal account, as -2 East, 134. on such account no payment is intended. § 15. The court gave leave to withdraw the general issue, 2 Stra. 1271, in order to bring money into court, and then to replead the Tarlton v. same issue: this, for the promotion of justice, is within the Wragg. general discretion of the court, and is our practice. Сн. 177. 1 H. Bl. 299, § 16. An action was brought against three defts.; one was outlawed, judgment against another by default, and the court refused to allow the third to pay money into court; 2 W. Bl. 1029, Kaye v. Panchiman. § 17. In an action against a carrier, who had given notice Hutton & al. he would not be liable beyond £20, but on certain conditions; he was allowed to pay £20 into court. v. Bolton. 1 H. Bl. 24, Vernon v. Wynne. 2 Stra. 796, Crutchfield v. Scott. 3 D. & E. 137, Parker q. t. v. Mac farlan. § 18. Plt. in replevin was allowed to pay into court the rent for which the deft. avowed. § 19. And if an executor sue, money may be brought into court. § 20. If the court has reason to believe a qui tam action is prosecuted, merely for the issue money; on motion, the court will allow it to be paid into court by the deft., to abide the event of the suit. § 21. If a party pay money into court by mistake, he is 2D.& E.645, bound but in one case, and that is, where it is paid in by Malcolm v. 2 Bos. & P. rule of court. § 22. And if the deft. pay money into court by mistake, 392, Vaugh- the court will not order it restored to him, except, perhaps, an v. Barnes. in cases of fraud. 1 Johns. R. 149, Dunlap v. Com. Ins. Company. 7 Johns. R. 315, Johns bian Ins. Co. 419. § 23. After the deft. pleaded, the court granted him leave to pay money into court, paying costs to the time, but not specifically, as a premium on a policy of insurance, on which the action was brought. § 24. Held, that payment of money into court admits the cause of action, as it is stated in the plt's. declaration. This ton v.Colum- is the general principle now clearly settled in many cases: --1 Taun. R. The true inference, for when the deft. pays money into court on the plt's. declaration, he admits he owes the plt. money on the ground of it; and if that be contract, he admits all the fair construction of it; or if tort, he admits the tort in substance, as charged in the declaration. Bringing money 1 Phil. Evid. into court admits the plt's. character in which he sues; also admits the action is in the proper court; cites 5 Esp. N. P., Miller v. Williams. 150. 1 Phil. Evid. 152. Johns. R. 192, 204, Sleght v. Rhinelander & al.-2 Taun. 267. 3 Bl. Com. § 25. After paying money into court, the deft. may avail himself of his infancy. § 26. In case, on a policy, deft. pays premium into court, the plt. takes out the money, informing he means to go for total loss. Held, he may do it. Paying money into court must be proved by producing the rule of court. a ART. 7. Protestandoes. §1. These are often used in various parts of pleadings, and are often used with but very little 311.-5 Com. precision; the general use is to prevent duplicity in pleadD. 459.-2 ing, and especially to prevent a conclusion being made Saund. 103. ---3 Ins. Cl. 307, 350.-Plow. 276.-1 Inst. Cl. 124. Art. 7. against the party taking it, in another action. A protestando CH. 177. always precedes the plea, in this manner; and the said D. protesting, the said tenements were not included in the fine levied, as aforesaid, &c. &c., for plea says, &c. Several purposes are ascribed to a protestando in the books. It is stated to be often used to avoid an implied admission of a fact, which cannot, with propriety or safety, be positively affirmed or denied. It is an exclusion of a conclusion. $2. Protesting the plt. is a villain; for plea, no demand; 3 Bl. Com. by the protestando, the future vassalage of the plt. was saved 311, 312. to the deft. in case the issue was found in favour of the deft. Finch's Law, § 3. Protest, that A died seized; plea, that B died seized, 3 Inst. Cl. and the matter of this protest the plt. cannot traverse. 305, 306. § 4. When one is to answer to two matters, but can plead 5 Mod. 136. only to one, for duplicity, he may take a protest to one, and 359, 366.-3 plead to the other, and take issue; and he is not concluded Inst. C1.306. by any of the rest of the matter he has by protestation denied, but he may afterwards take issue thereon. dipp v. Ot It is of two sorts: 1. When a man pleads any thing he dare 2 Saund. not directly affirm, or cannot plead for fear of making his 103, in Holplea double; as if to make title to land, the deft. ought to way; Wilplead divers descents from several persons, but dare not af- liams' notes. firm they were all seized at the time of their death; and if 7 D. & E. 447, Blackhe could so plead, it would make his plea double, to allege more v. Flemtwo descents when one descent would be a sufficient bar; then ing.-9 East, the deft. ought to plead and allege the matter, interlacing the 298, 304, word " protesting" thus protesting that such a one died Philip v. Baseized, &c., and this the adverse party cannot traverse: the Evid. 172.second sort is, when one is to answer two matters; yet, by law, 9 East, 157. can only plead to one of them; then he may say, protesting, or not acknowledging such part of the matter to be true; and adds for plea, &c.: in this way" he is not concluded by any of the rest of the matter which he has, by protestation, so denied, but may afterwards take issue upon it." A protestando requires no answer. con.-1 Phil. 143.-3 Ins. § 5. But in some books it is said that the effectual matter Law's Pl. of the bar, or things issuable or traversable, may not be Cl. 306, 307, taken by protestando. A protest repugnant to itself is void. 308, 309. The party may protest he has performed his covenant; also, that the other party did not perform his: that the information is insufficient in law: that he has fully administered, and for plea, that he did not sell or waste: that he has kept his warranty, and that H. had no right: for plea, did not eject; Co. Ent. 43. protest, not any thing true; and it is idle to protest as to a thing that is traversed by the plea. Plow. 271. CH. 177. § 6. So, the deft. may protest, the goods charged were not Art. 7.. so many, and of so much value. Protest does not avail, for instance, in the villain's case above stated, if the issue be Ras. En.636. found for him; but it does as to the value of the land, in an -4 Bac.Abr. action on the warranty, though his plea be found against 126.-5 Com. him, for he could not plead the value; but generally a protest cannot be taken of a matter issuable, nor avail the party taking it, when the issue is found against him; but a few special cases are exceptions. 55.-Co. L. D. 460. Ch. 120, a. 5, s. 2.-Ch. 124, a. 2, s. 1.-Ch. 226, a. 6, s. 3. 3 Wils. 94, Godfrey v. Saunders. Plow. 676. 360.-3 Wils. Plow. 276, r. Fox; cit § 7. This was an action of account against Saunders, as surviving bailiff. Plea, &c. Replication, that the goods were intrusted with the deceased partner, by the deft., (they being cofactors,) without the direction, consent, or privity of the plt. Rejoinder, protesting that the said goods were intrusted by the deft. to the deceased alone, by the plt's. consent. The court held, this protestando was bad; for the deft., by his plea before the auditors, admitted and relied on the plt's. consent as material; therefore, when the plt. tendered, in his replication, an issue on the consent, matter material and issuable, the deft. could not take matter issuable by protest, or if he do, it cannot avail him, except in a few cases: but where the issue is found for the party, his protestando avails him; but if against him, there is this distinction: 1. If the matter on which the protest is taken, be not issuable or pleadable, it avails him; as if an infant sue his guardian, and appears by attorney; protest, the plt. is a minor, avails the deft., though the issue be found against him: 2. If the matter on which the protest is taken be issuable, or that which may be pleaded, the protest avails not; as if the villain sued his lord, and the lord protest the plt. is his villain, and plead his other matter in bar, and issue is joined; now, if the issue be found for the lord, the plt. is a villain still; but if against the lord, and for the villain, he is free, for the lord might have pleaded, (instead of protesting,) that the plt. was his villain, and issue taken thereon. §8. A protestando, inconsistent with the plea, or itself, is Graysbrook bad; as where to an appeal of mayhem, the deft. protested ed 2 Saund. that if the plt. had any hurt or mayhem, it was from his own 103, b. c. assault, and pleaded he was not maimed This protestation Williams' is repugnant to the plea. So, an idl eor superfluous protestando Keilw. 95. is bad; as in an action by the executor of A, the deft. proCro. El. 815. tests A did not make a will; also, that he did not make the -Co. L.126. plt. executor: second is idle, for if he made no will, he did not -Plow. 1,2. make the plt. executor. But held, that a superfluous or re notes; cites pugnant protestation, does not vitiate the plea, though shewn for cause of demurrer; "for the intent of the protestation is, that the party may not be concluded in another action," nor can that which is the ground of the action, be taken by protestation, as it may be put in issue, as in the villain's case above; and as, if the plt. be A's executor; may be put in issue, and defeat the suit. ART. 8. Estoppels. CH. 177. Art. 8. § 1. This is an important branch in pleadings, already See Ch. 160. in part considered, Ch. 160, a. 1, English cases embraced in thirty-four rules; a. 2, American cases. Estoppels are matters in pleadings very much scattered throughout the books; and may here be further pursued. 20. The manner of pleading an estoppel, is in substance thus; for instance, in case of variance, between the complaint and declaration after imparlance, and the plt. says the deft. ought not to be admitted to plead variance between the complaint and declaration, because the plt. says he, at such a court, 7 Inst. Cl. declared against the deft. on the complaint, to which decla- 152.-Clif. ration, the deft. in that court prayed leave to imparl, &c. and had it, as appears by the record, &c.; hoc paratus; wherefore ne prays judgment if the deft. ought to be admitted to plead that plea of variance, &c.; or in another form, he prays judgment that the deft. to the plt's. writ may further answer; another case prays judgment as well if the deft. ought to be admitted against that record, to say, the said H. before the time of suing out the original writ, in the replication mentioned, died, as for his damages occasioned by the non-performance of the separate promise, to be adjudged to him. The deft. says he ought not to be precluded his plea of variance, &c. because his imparlance was with reserving all exceptions to the complaint, &c. and traverses, that there is any record but of a special imparlance, &c. § 2. The courts keep a strict hand upon estoppels, as their tendency is to preclude the truth, and may be demurred to. See Ch. 160; Ch. 91; and Index, Estoppels. 66 Smith. § 3. The deft. was arrested by a wrong addition, and put Willis, 461, in bail, thus, “A B, gent. who was arrested by the name of Smithson r. A B, clerk." Held, he was not estopped to plead, in abatement of the original action, that he was sued by the wrong addition; but estopped if he put in bail by the name in the 1 Ld. Raym. writ. Lofft, 82. 729, Hermitage r. Tom Hoare. A, having no interest or estate in certain lands, demised kins.-1 them by indenture, and afterwards purchased then. Held, Salk. 275, he was estopped to say he had no interest in them, when he Holman v. bought them; but if A have an interest in a part of the land, his lease will operate to pass an interest in that part, but by estoppel in the rest in which he has no interest: so, having an interest in a part does not exclude the estoppel as to the residue. |