Eastman v. Molineux

The case finds that the sum of sixty-six dollars, the amount due upon the note in suit, was brought into court by the defendant, under the common rule. The rule provides that unless the plaintiff shall accept the sum thus brought into court, with costs to be taxed by the court in full discharge of the suit, the sum shall be struck out of the declaration, and paid out of court to the plaintiff or his *504attorney; and upon trial of the issue, the plaintiff shall not be permitted to give evidence for that sum. This is the substance of the order made when money is paid into court. The 36th rule provides, that unless the plaintiff shall show that a greater sum than the sum so paid into court was due to him, he shall have no costs. 6 N. H. Rep. 582.

In the present case, the sum due the plaintiff has been brought into court. The plaintiff has not accepted it, with costs to be taxed by the court, in discharge of the suit. He is not, therefore, entitled to recover any part of the debt, because that is struck out of the declaration, and the rule expressly prohibits him from recovering any costs. But the rule also provides, that the defendant, in such cases shall be allowed his costs from the beginning. But as we understand that the parties have agreed that the fcourt shall render such judgment in this case, and in the subsequent case of Molineux vs. Eastman, infra, as may properly be rendered, whether the defendant should be allowed costs or not, is a question we shall reserve until the consideration of that case. In this case, therefore, the judgment of the court is only that the plaintiff is not entitled to costs.