#### Robert Williams *versus*Joseph Ingersoll.

If the defendant pays money into court, and the plaintiff nevertheless proceeds to trial and a verdict is given against him, he neither pays nor recovers costs up to the time when the money was paid into court.

Assumpsit. At the November term 1830, auditors were appointed, upon the defendant’s motion, the plaintiff not objecting, and they made a report that the sum of $ 442 was due to the plaintiff. The defendant having refused to pay the auditors their fees, the plaintiff paid them and the report was delivered to him.

At the November term 1831, after plea pleaded and a few' minutes before the cause was called for trial, the defendant, without having asked leave of court, brought in the sum found by the auditors to be due to the plaintiff. No previous notice having been given of an intention to bring this money into court, and the plaintiff not being then personally present, and the judge *{Wilde)*refusing to allow time to the plaintiff’s counsel to consult their client on the subject of taking the money, the counsel proceeded to open the cause, in the belief that the plaintiff might accept the money and go out of court at any time before a verdict should be rendered. In the course of the trial, the defendant called upon the plaintiff’s counsel for the report of the auditors, which was refused, ex cept on condition that the defendant should pay the amount of the auditor’s fees ; but the judge stated that the defendant was bound to pay the same and all other legal costs of the plaintiff up to the time of bringing the money into court, and thereupon the report was delivered to the defendant and was used by him. Before the trial was terminated, the plaintiff came personally into court, and upon his request his counsel stated that he was ready to receive the money brought in, with the costs *351up to that tin.e, and they moved that no further proceedings might he had before the jury; but the defendant insisting that it was necessary for his security that he should have a verdict, the judge overruled the motion, and there being no evidence that the plaintiff was entitled to recover more than the sum brought into court, directed a verdict to be returned for the defendant. The judge was of opinion that the plaintiff was entitled to his costs to the time when the money was paid into court, and he adjudged and ordered that an execution should issue against the defendant for such costs. The defendant then filed a petition, that the execution might be superseded and the judgment for costs be set aside; and in support of this petition he referred to the 17th Rule of this Court, (16 Mass. R. 376,) which is as follows : — “In all cases in which money may be brought into court upon the common rule, as it is called, if the plaintiff shall not accept the same, and if upon the trial the verdict shall be for the defendant, the plaintiff shall not be liable for any costs incurred before the time of bringing the money into court, but only for the costs incurred after that time ; and the terms of the rule shall be altered accordingly.” The plaintiff moved, that inasmuch as he was not permitted to take the money and costs and go out of court, the verdict might be set aside, if necessary, or that judgment might be- entered for the plaintiff for nominal damages, *non obstante*veredicto, in order that he might be restored to his rights.

<S. *Hubbard*and *P. 0. Thacker,*for the plaintiff,

referred to *Boyden*v. *Moore,*5 Mass. R. 365 ; *Griffith*v. *Williams,*1 T. R. 710; *Hartley*v. *Bateson,*ibid. 629 ; *Stevenson*v. *Yorke, 4*T. R. 10; *Kabell*v. *Hudson,*ibid. 10; *Wilton*v. *Place,*2 Bos. & Pul. 56 ; *Muller*v. *Hartshorne,*3 Bos. & Pul. 559; *Seamour*v. *Bridge,*8 T. R. 408; *Lorck v. Wright,*ibid. 486 ; *Twemlow*v. Brock, 2 Taunt. 361 ; *Powell*v. *Parkinson,*6 Maule & Selw. 107.

*Curtis,*for the defendant, relied on *Boyden*v. *Moore,*5 Mass. R. 365, and the 17tb Rule of Court; he cited likewise, Hullock on Costs, 349, c. 5, § 3; *Twemlow*v. Brock, 2 Taunt. 361 ; *Jeffs*v. *Smith, 4*Taunt. 196 ; *Crosby*v. *Olorenshaw,*2 Maule & Selw. 335.

*March 7th*

*352*March 29th.*

*Per Curiam.*

In the case of *Boyden*v. Moore, *5*Mass R. 372, *Parsons*C. J. states the rule to be, that unless the plaintiff will accept the money brought into court in full satisfaction, with costs to that time, the amount brought in shall be struck out of the declaration and on the trial the plaintiff shall not be permitted to give any evidence for that sum ; and if on the trial the defendant obtains a verdict, he will have all his costs taxed. This is understood to be the rule in the King’s Bench, and it has been practised upon in this part of the Commonwealth. But it is attended with injustice, if the plaintiff must either abandon the residue of his claim or subject himself to the payment of costs which accrued during the period when, by the defendant’s own admission, he had a good cause of action; and this reason probably led to a modification of the rule in 1820. We are of opinion that the rule as laid down in *Boyden*v. Moore, and amended and qualified by the 17th Rule, (16 Mass. R. 376,) is established here. By the rule, thus modified, if the plaintiff proceeds to trial and does not recover more than has been paid into court, he is not subject to pay costs accruing previously to the payment into court; but, on the other hand, he does not recover costs against the defendant.

In the case at bar, the plaintiff proceeded to trial under an evident mistake of his rights. Had the rule been understood by the judge at the trial, in the manner above stated, he would have yielded to the plaintiff’s offer and permitted him to go out of court with the money and his costs. Indeed such was the effect of the order given for taxing the plaintiff’s costs. Under these circumstances, we are of opinion that the plaintiff is entitled to relief. This may be had by the defendant’s now agreeing to pay the costs up to the time of bringing the money into court, including the auditors’ fees, and upon this condition retaining his verdict; otherwise the verdict will be set aside, and the parties will stand as they did before the trial took place.1

1

 By Rev. Stat. *c.*121, § 14, if a defendant pay money into court, the plainiiff shall in all cases be entitled to the costs which had previously accrued, though he may not recover a larger sum than is so brought into court.