Bailey v. Bucher

The opinion of the Court was delivered by Sergeant, J. The judgment in this case, we are of opinion, must be reversed, because the court instructed the jury that assumpsit was not maintainable, but the defendant was liable only in an action of account render. The objection to the form of the action being made after the plea of tender and payment of money into court, came too late. Paying money into court is an admission of the cause of action, stated in the declaration to the amount brought in. 2 T. R. 275; 5 Burr. 2649. It denies only the plaintiff’s claim to a further amount. Here the cause of action in the declaration is a promise to pay in consideration of moneys received, and as the plea admits such promise to have been made, the action lies and the defendant is precluded from afterwards objecting to the form of action. The plaintiff was, therefore, entitled to go before the jury for such sum as he might be entitled to, if any, beyond the amount paid into court, and ought not to have been confined to that. There does not appear to be any other error. Judgment reversed, and a venire facias de novo awarded.