not afterwards be recovered back, though it should appear that the defendant paid in the same wrongfully, (Malcolm et al. v. Fullarton, 2 Term Rep. 645; Vaughan v. Barnes, 2 Bos. & Pul. Rep. 392,) unless perhaps, some fraud or deceit were practised upon him. Cox v. Brain, 3 Taunt. Rep. 95.

A tender, upon which money is paid into Court, admits the contract as set forth in the declaration, as in other cases. And where a tender is pleaded, and the money brought into Court, the proceedings are substantially the same as under the common rule, except that the defendant, if the money be accepted, pays no costs.

But the defendant cannot recover back the money, though the plaintiff, in his replication, deny the tender, or the defendant obtain a verdict. Le Grew v. Cooke, 1 Bos. & Pul. Rep. 332; Cox v. Robinson, 2 Stra. Rep. 1027. In case of a plea of tender, the money must be brought into Court, otherwise it may be treated as a nullity; and in case of a verdict for the defendant, the plaintiff may have judgment, non obstante veredicto. Claflin v. Hawes, 8 M. R. 261.

Costs. When money is brought into Court, the plaintiff either accepts it with costs, in discharge of the suit, or proceeds in the action: if he elect the former course, he notifies the defendant of his intention, and if the costs remain unpaid, he has a right to proceed, and will recover his costs with nominal damages. Bucker et al. v. Palsgrave, 1 Camp. Rep. 557.

But if the plaintiff do not elect to take the money, but proceeds to trial, unless he prove a sum to be due beyond what is paid into Court, the defendant, as before stated, is entitled to a verdict, and will recover

the costs of the action, from the time the money was paid into Court, but not before, and the plaintiff recovers no costs. Williams v. Ingersoll, 12 Pick. 345.

If the plaintiff recover more than the sum paid in, he is entitled to his costs, in the same manner, as if there had been no payment. 2 Paine & Duer, Prac. 161; 1 Saund. 33, note 2; Stevenson v. Yorke, 4 Term Rep. 10; Postle v. Beckington, 6 Taunt. Rep. 158; 1 Marsh. Rep. 158, S. C.

The plaintiff is entitled to costs up to the time of the defendant's paying money into Court, if he take it out at any time before trial, even if he proceed in the cause, and though he afterwards gives notice of trial, which be neglects to countermand, whereby the defendant is entitled to judgment, as in case of nonsuit, (Seamour v. Bridge, 8 Term Rep. 408; Lorck v. Wright, 8 Term Rep. 486); but not if the defendant have obtained such judgment; in which case, the subsequent costs are to be allowed to the defendant. Crosby et al. v. Olorenshaw, 2 Maule & S. Rep. 335.

In actions on policies of insurance, where there is a consolidation rule, and money is paid into Court, it seems that the plaintiff is entitled to the whole costs of the causes not tried, up to the time when the money is paid into Court, although he may not succeed in the cause, and although the defendant in that cause be entitled to the whole costs. 1 Tidd's Prac. 547; Twemlow v. Brock, 2 Taunt. Rep. 361; Vide Burstall v. Horner, 7 Term Rep. 372.

Where the conduct of the plaintiff appeared to have been extremely oppressive, and the defendant offered, and was willing to pay the money, before action brought, the Court, upon motion of the defendant, discharged so much of the rule as related to the payment

of cost. (Johnson v. Houlditch, 1 Burr. Rep. 578); and in a recent case, they allowed the defendant his costs, from the time he made the offer, to be deducted from the costs incurred by the plaintiff up to that time. James v. Raggett, 2 Barn. & Ald. Rep. 776.

But, in our practice, the rule being clear, and defined by the Court, they would not probably exercise their discretion in such a case, to the infringement of the rule itself.

It is a general principle, that where money is paid into Court, the plaintiff has an absolute right to take it out, whatever may be the result of the suit. The only exception is, where a plaintiff pays money into Court on a bill for the redemption of mortgaged premises, and the defendant contests the right of the plaintiff to redeem, and prevails. In such case the defendant is not permitted to take the money. Putnam v. Putnam, 13 Pick. 129.

Where the holder of a promissory note commenced actions against the maker and indorser, and the maker brought the amount of the note and interest into Court, it was held, that the plaintiff was not bound to accept it, unless the costs of both actions were paid. Whipple v. Newton, 17 Pick. 168.

CHAPTER XX.

CONTINUANCE.

A MOTION for the continuance of a cause, by either party, should be made as soon after the cause for the motion has come to his knowledge as practicable. The rules of the two Courts upon the subject of continuances, in the Appendix, should be perfectly familiar to every practitioner. Probably one half of all the affidavits required by the rule are rejected, as being defective.

In cases of insolvency, the Court of Common Pleas has adopted a rule of practice, which they have not, however, reduced to writing, viz., where the insolvency of the defendant is suggested, and a motion is made for continuance, the action will be continued, of course, until the defendant has had an opportunity, by reasonable diligence, to obtain his discharge.

Young practitioners are sometimes perplexed by an entry that a case is continued nisi. This entry is usually made on the suggestion of the Judge, when it is doubtful what judgment should be entered, and in order that the case may be farther examined by him, after the close of the term. It means that the case is continued generally, unless some other disposition shall be made of it during the vacation. Any entry, that the Court may order, may be made in such case, during vacation. Rev. Stat. c. 81, § 57, 58.

The most common ground for moving a continuance is the absence of a material witness. The rules of the two Courts, upon this subject, are most explicit, and it

will be seen, by a reference to them, that the affidavit upon which such motion must be founded, is required to be particularly full and minute. The point of the greatest difficulty is, generally, whether proper means have been employed to procure the attendance or obtain the testimony of the witness. There is a great reluctance with all Judges to compel a party to go to trial, when he makes oath that a material witness is unexpectedly absent; and it is perhaps quite too common to allow continuances for this cause. If it were

understood, as the practice of the Courts, that the utmost diligence in procuring testimony, at the earliest moment, would be exacted, it is probable that motions for continuance on this account would soon diminish in number.

When a witness, who has been found and duly subpoenaed, has neglected to attend, it is usual to issue a capias against him for contempt, and to postpone the trial, if requested, until the capias is returned. It is not usual to grant a continuance, though it is often demanded, by counsel, as a matter of right. It is believed that a continuance will generally be granted only upon affidavit, setting forth the testimony which, it is expected, the absent witness will give, and the reasons for believing that he will give such testimony.

Nonsuit. Whenever a plaintiff fails to appear and prosecute his action, he is thrice called by the crier, and judgment of nonsuit is entered; in which case the defendant recovers a judgment for costs. A nonsuit is not an admission by the plaintiff that he has no cause of action; and he may, therefore, immediately commence a new suit for the same cause of action. But in such case the Court will, upon motion of the defendant, order a stay of proceedings until the costs