There is one case in which the defendant ought certainly, in his own interest, to pay money into court. This is where in answer to a claim for a liquidated sum, he has made a tender before action. Tender of what is due is a complete defence to an action ; but where there is a plea of tender upon the record, it will not avail the defendant unless he has brought the amount tendered into court. And this is good sense, because the defend ant's attitude must be that he always was and still is ready and willing to pay his debt. But where money has been paid into court with a plea of tender, the plaintiff cannot terminate the action by taking that money out of court; for he will thereby admit the defence and the costs of the whole action will be the defendant's.
But it is not always necessary for a defendant to admit liability for the sum paid in. In any action of debt he may pay in without admitting liability (except when he pleads tender). This is a mere offer to secure peace, which may appear with any other defence, e.g., a denial of the contract or a plea of performance. The plaintiff may accept it in satisfaction and take it out of court (0. 22, r. 6) and tax his costs (0. 22, r. 7). If he does not accept it in satisfaction, the money remains in court to abide the result of the action (0. 22, r. 6). The danger of denying liability, however, lies in this, that it puts the plaintiff to the proof of his case, and although he may recover no more than the sum paid in, the defendant may not get his costs of con testing those issues. In action for damages (except for libel or slander) the rule is very similar (0. 22, r. I), but in libel and slander cases, payment in can only be made in satisfaction (i.e., with an admission of liability) or else by way of compensation and amends, under the Libel Act 1843. If necessary, as where, for example, the claim involves several causes of action, particulars will be ordered showing how much of a payment in is to be applied to each cause of action.
Neither the fact of a payment into court having been made nor the amount of such payment must be revealed to a jury (0. 22, r. 22). If there has been such a revelation, the court will stop the case and discharge the jury. If more than enough has been paid in, the excess will be ordered to be repaid to the defendant.
To the general rule that it rests with plaintiff to say whether he will or will not accept money paid into court, there is an exception in any case where the plaintiff is an infant or a person of unsound mind. Acceptance of a sum paid in involves (or may involve) a compromise of the action, and the court, exercising a parental jurisdiction in such matters will refuse to allow a compromise which may not be fair to the plaintiff. And so the
court has power, not only to refuse to allow a compromise, but it may provide, by order, for the money being retained in court and invested or otherwise disposed of for the benefit of the infant (until he attains the age of 21) or lunatic as the case may be. (See generally 0. 22, r. 15.) Reply and Subsequent Pleadings.—The defence having been delivered, the plaintiff may find it necessary to deliver a reply. Under the old rules a plaintiff was always entitled to reply—even if it was only to join issue. But now a mere joinder of issue is unnecessary and (0. 27, r. 13) no reply or subsequent pleading (e.g., rejoinder, sur-rejoinder, etc.) can be delivered without order except in certain admiralty cases (0. 23). But a reply may be essential, e.g., where there is a counterclaim (to which the reply is really a defence) or where the defendant has pleaded the Statute of Limitation, and the plaintiff desires to prove a pay ment which takes the case out of the statute. He must not, how ever, suggest a new cause of action in his reply, for that would be what the old pleaders called a "departure." And the reason is plain. To a new cause of action the defendant must be enabled to put in a defence in accordance with the rules. A new cause of ac tion must therefore appear in an amended statement of claim.
Cases may occur in which, although the plaintiff had a good cause of action when he issued his writ, something happened after wards to satisfy his claim or discharge the cause of action. For example, he may accept payment of the debt sued for, or a sum of money by way of compromise of a claim for damages. Such acceptance or compromise would constitute a defence. If it takes place before the expiration of the time limited for de fence, the defendant may raise it in his defence, signifying that it arose since action brought (0. 24, r. I). And even if it arises after that time, the defendant may raise it by leave (0. 24, r. 2). The plaintiff may thereupon "confess" such defence and tax his costs up to the time when it was delivered (0. 24, r. 3) unless the court shall otherwise order. A similar rule obtains with reference to a reply which sets up new matter in defence to a set off or counterclaim. A counterclaim may be founded on facts which have arisen since action brought, but it must be phrased as so arising.