M'Kinney against Mitchell, 4 Watts & Serg. 25

The opinion of the Court was delivered by Sergeant, J. — There is, in our opinion, no sufficient reason why the plaintiff might not enter judgment for the part of his demand admitted in the affidavit of defence, and receive it when voluntarily paid by the defendant, and yet proceed for the residue. It is certainly consistent with the justice of the case; for it would be hard if the plaintiffs’ receiving the admitted portion when the defendant chose to pay it, to save interest and costs, should debar the plaintiff from the residue of his claim.

When the defendant pays money into court, the plaintiff may take it. out and yet proceed for the residue, if he deems it insufficient. Nor is there anything extraordinary in the construction of the rule which allows the plaintiff to take a judgment for the part admitted. The rules of the Court of Common Pleas of Philadelphia county, quoted from 3 Binn. 417, expressly authorized it.

It would be of little benefit to the plaintiff to require the defendant, in his affidavit of defence, to specify the part which -he admitted, if the plaintiff could not enter judgment so as to secure a lien on the defendant’s real estate, but were still obliged to wait the delays of a trial, as if no specification ;were made in the affidavit.

Should the part denied be but a trifle, then, according to the construction contended for by the defendant, he might keep the plaintiff from securing the main portion of his debt, and, in the meanwhile, dispose of his property so as to defeat an acknowledged claim; whilst by the other course no damage is done to the defendant, as the subsequent costs must depend on the result. Such judgment is in the nature of an interlocutory judgment, the amount to be adjusted by a final judgment, somewhat like the judgment entered on a report of arbitrators under the compulsory arbitration Act.

We think, under the true construction of the rule of court, the plaintiff is not barred by the proceedings which have taken place, and that judgment on the demurrer ought to be rendered for the plaintiff. Judgment reversed, and judgment on the demurrer for the plaintiff, and record remitted for further proceedings.