JENKINS v. CUTCHENS et al., 2 Miles 65

The opinion of the court was delivered by Pettit, President. After payment of money into court the defendant can never take it out; yet the court, if the plaintiff failed in his action, and the money has not been already taken out of court by him, will impound it to answer the defendant’s costs. 2 Arch. Pr. 184. Whatever difficulty there may be in regard to a nonsuit after a plea of tender, where there is no payment into court, yet it is settled that the plaintiff may be non-suited after payment of money into court. 1 Arch. Pr. 188; 1 Camp. Rep. 327, and cases cited in note; 7 T. Rep. 368.

Upon general principles, then, it would seem to be proper for the court to make this rule absolute. But the plaintiff alleges— 1st, that the cause was not at issue; 2diy, that as administrator, the plaintiff is not responsible for costs; and 3dly, that the plea of tender and the payment into court were by one only of the defendants. First: The only difficulty here is that the plaintiff never entered in form a replication to either of the pleas, in regard to the difference between the amount claimed and the sum paid into court.

The plaintiff went to trial under the first venire as if the prothonotary had, under the rule of court, entered the proper replications. The defendant had a right to consider that act of the prothonotary as done; and it is too late for the plaintiff to avail himself of this suggestion now. Secondly: The case of Muntorf v. Muntorf, 2 Rawle 180, decides that though in England, executors and administrators are, by judicial construction, excepted out of the statute of 23 Hen.

VIII., ch. 15, giving the defendant judgment and execution for costs against the plaintiff, in case of nonsuit or of verdict for defendant, yet that a different

interpretation has been uniformly given to the statute since its extension to Pennsylvania. Executors and administrators here are bound for costs. There is nothing then in this point. Thirdly: The third objection rests upon the assumption that the money never was in legal contemplation paid into court. No sound reason can be assigned why one of several defendants, where each is liable for the whole debt, and where payment by one is payment for all, should not be allowed to pay money into court. It is in entire unison with the spirit of the original understanding of the parties. Though in the case of Kay v.

Panche-man et al. 2 Wm. Blacks, 1029, one of three defendants was not permitted to bring money into court, yet it appears from the unsatisfactory report of the facts, that of the other two defendants, one had suffered judgment to go by default, and the other had been outlawed; and further that it was thought that confusion would be introduced into the record, and the plaintiff unjustly put in jeopardy of costs by such a proceeding. The reasoning of the decision in that case has no application to the one before us. None of the grounds taken by the plaintiff being tenable, the rule is made absolute.

Rule absolute. * The statute of 3 and 4 Wm. IV., c. 42, s. 31, makes executors, who are plaintiffs, generally liable to costs, in the same way as parties who sue in their own right. In Farley v. Briant, 3 Adolphus Sp Ellis 839, (30 E. C. L. Rep. 239), Lord Dexmax, chief justice, after stating the general rule as established by the statute, says“ it is founded on the natural justice of indemnifying successful defendants from an action wrongfully brought against them.” He adds:—“ The statute 3 and 4 Wm.

IV., c. 42, ingrafts on the general rule the exception, ‘ unless the court in which such action is brought, or a judge of any of the said superior courts shall otherwise order.’ That being the exception, a party applying for the benefit of it, must make out special grounds for the interference of the court.”