Gamble v. Sentman

Miller, J., after stating the case, delivered the opinion of the Court. The motion to dismiss the writ of error in this case is overruled. The judgment was rendered on the 1st of April, 1887. The petition for the writ was filed in due time, on the 11th of April, and the order of Court allowing it, was passed on the 30th of June following.

The transcript of the record reached this Court on the 5th of September, within three months from the date of the order allowing the writ, and under Rule 2, relating to appeals as amended by rule 27, the time for transmission runs from the date of that order. The third plea is in the form set out in 1 Toe’s PI. <&P., sec. 611, and is similar to that found in 2 (Jhitty’s PI., (VWi Amer. Ed.,) 471. It admits part of the plaintiff's claim with tender and payment into Court of such part, and denies the residue.

It is in effect a plea of payment of money into Court, under secs. 19 and 20, Art. 75 of the Code, which is a species of tender. 1 Poe’s PI. & Pr., sec. 695. These sections are substantially copied from the statute of 3rd ⁷⁶ and 4th William IV, ch. 42, sec. 21, and the Rules as to costs thereby provided. Their object is to encourage the settlement of suits without the cost and delay of trial. They allow a defendant, except in certain actions, “to pay into Court a sum of money by way of compensation or amends,” and such payment may set up by plea.

The plaintiff then, after the money has thus been paid in, may reply by accepting the same “in full satisfaction and discharge of the action,” and if he does this he may have his costs taxed, and if they be not immediately paid, he shall have judgment therefor ; or he may reply that the sum paid in “is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded, and in the event of an issue thereon being found for f¿ie defendant, the defendant shall be entitled to his costs of suit and the plaintiff to so much of the sum paid into Court as shall be foundfor him.” In the present case the plaintiff adopted the latter course. His replication follows the language of the statute, issue was joined upon it, and in view of this issue and the provisions of the statute, the question arises how is the sealed verdict to be interpreted ? The concluding paragraph of the law as above quoted, plainly indicates that where the plaintiff replies that the money paid in is not enough to satisfy bis claim, it is the duty of the Court to hold on to the money until the issue on that replication is decided, and then to pay over to the plaintiff only so much of it as the jury may find to be due him. It also indicates with equal clearness that upon such issue the jury may find either that the whole amount paid in or a less sum is due to the plaintiff, and whether their verdict be for the whole or a Jess sum, it is practically a verdict for the defendant, because the plaintiff has not succeeded in maintaining his replication.

But the sealed