Ellis v. Inhabitants of Madison

The opinion of the Court, after a continuance nisi, was drawn up by Weston C. J. ‘The common rule of the Common Pleas, in regard to the payment of money into court, is precisely like the thirty-second rule of this court, which is to be found in 1 Greenl. 421. It is contended by the counsel for the plaintiff, that the money brought into court in this action, was not upon leave granted; but the entry in the docket implies that leave was first obtained; otherwise it could not have been paid under the common rule. The entry sufficiently apprizes the counsel for the plaintiff of what was done, if he had not notice, at the time when leave, thus to pay in the money, was granted to the defendants. And in our practice, no other evidence of this proceeding is required, or is necessary, either for the court or the parties. It does sufficiently appear upon the docket, that two sums, and not one only, were paid into court under the common rule. It is further insisted, that this is not a case, to which the common rule applies. But whatever may be the English rule, or the [314] rule of other courts, our rule and that of the Common Pleas, applies to all actions. And it is equally useful in all cases, either by arresting litigation by a fair adjustment, or by justly throwing costs subsequently incurred upon him, who is ultimately found to prosecute or defend, what may remain in controversy, without right. And we are of opinion, that the Judge below properly rejected parol testimony, to change the effect of the entry on the docket. It was clearly inadmissible to affect the regular evidence of proceedings in court. The common rule does, it is true, provide, that the sum thus paid shall be stricken out of the declaration, as if paid before the commencement of the action, which proceeds only for the residue. But by consent of parties this was waived, it being agreed that the verdict when returned, should be amended and put into form by the court. As the jury found less for the plaintiff, than the money paid into court, it was in effect, under the rule and the consent of the parties, a verdict for the defendants. The motion on the part of the plaintiff for full costs, was properly overruled by the Judge, and costs to the defendant, from the time the money was brought in, were rightfully allowed.