Freeze v. Marston

It seems to be settled in England and Massachusetts, that the bringing of money into court generally, on the whole declaration, ⅛ an implied admission of a cause of action on each count. 2 B. & A. 117 ; 3 Taunt. 95 ; 2 East. 128 ; 2 H. Bl. 374 ; 3 D. & E. 275 ; 1 D. & E. 464 ; 2 B. & P. 550 ; 4 Starkie’s Ev. 1093 — 1099.

But the rule, under which the money is brought into court, is only evidence of an admission, and does not preclude a jury from finding according to the truth of the case. 2 M. & S. 106 ; Mellish v. Allnut.

We are not aware, that it has ever been settled in this court how far the bringing of money into court generally, upon a declaration containing several counts, is to be considered as an admission of a cause of action on each count. But the true rule is stated in the case cited from Pickering’s Reports.

However, as there has been no settled practice in this State, we shall give leave in this case to amend the rule ; and the amendment must be without terms, unless the plaintiff can show that he has been misled by the form of the rule.