Thurston agt. Marsh.

confession of judgment, and is so held by the court. (Johnson agt. Sagar, 10 How. 453; Emery agt. Emery, 9 Id. 130.)

And he refers to 1 Barb. Ch. Pr. 236, which relates only to plaintiff's compelling the defendant to pay money into court, which he admits to be due.

Our case is neither, but is simply the defendant's admitting he owes so much and paying it, not confessing a judgment for it.

Under the old and present practice, whenever a defendant pleads tender, he must bring the money into court. How? Precisely in which it has been done in this case. (1 Burrill's Pr. 406; 1 Tidd's Pr. 561.)

Tidd, p. 564, says, the motion for leave to bring money into court, is a motion of course.

And always heretofore the practice was to hand the money to the clerk, take his receipt, and enter rule in the common rule book, and then serve the original receipt and copy rule, on the plaintiff.

The plaintiff is never prejudiced by this act of the defendant. There are only two modes in which the plaintiff can be affected by it.

1. Where he takes the money out of court, then his act in so doing it, is what affects him.

2. Where the court finally determines that he is not entitled to any more, and there he ought to be prejudiced.

Neither the Code nor the rules, have altered the old practice where a party acknowledges he owes money, and wants to pay it. Who has a right to prevent his paying it? The plaintiff won't receive it from him; he does the next best thing, and that is, pays into court, whence the plaintiff can take it out, whenever he pleases and the defendant never can. To him it is gone forever. He has paid it.

The only thing that has caused any embarrassment is this, that now the judges (in this district) will not allow the clerk to enter any common rule which was always entered by the party at his own peril afterwards.

And this order is according to the true practice, nothing more than a common order, entered ex parte of course, and entered at the peril of the defendant, and in no way affects the plaintiff,

Thurston agt. Marsh.

unless he takes it out, or unless the court shall hereafter adjudge in the matter.

Therefore it was I advised the attorney to pay the money into court, according to the old practice, and make his application for such relief as the court might grant him; he thus by paying it into court, showing his good faith.

There was no per centage apHence the Code even in such tender as distinguished from a

ROOSEVELT, Justice. Tender after suit, was confined to "actions at law," (2 R. S. 553.) In those actions costs were fixed and not discretionary. They were adjusted also, to each successive service in the cause. plicable in gross to the whole. actions makes no provision for a confession. It permits the defendant to serve an offer to allow judgment for a specific sum with costs. On such judgment the per centage may be added and the costs thus complete. But no provision is made for a per centage without a judgment. Whether, therefore, a tender can now be made after suit, except in the form of an offer to allow judgment, may at least be doubted. It certainly cannot, as it seems to me, in a foreclosure suit. Such suits, it is well known, were not "actions at law," as understood in the Revised Statutes. They were suits in equity and subject to all the equitable jurisdiction of the court. They are so still. In such suits costs under the Code "may be allowed or not, in the discretion of the court." (Sec. 306.)

The defendant has mistaken the practice. He should have offered to pay the interest accrued, and upon its refusal, and a reasonable excuse for the seeming want of precise punctuality, have obtained as he might, an order to stay all proceedings till a further default, if any should occur.

Order accordingly.

ERRATUM.

In the case of John Monroe and others agt. John Pilkington and others ; Wm. B. Scott and others agt. The Same, on page 250, by some mistake Judge MITCHELL'S name was omitted in the opinion. On page 251 beginning at the last paragraph, read, "MITCHELL, Justice,"

INDEX.

ABATEMENT. A defence consisting of matter in abatement only, cannot

PAGE

be set up in an answer containing matters in bar of the action.. 61

ACTION. By personal representatives of a deceased plaintiff for causing death
by wrongful act, neglect or default, (Laws 1847,) does not lie
against the personal representative of the wrong-doer, but only
against the wrong-doer personally. The common law rule that
the remedy for injuries to the person dies with the wrong-doer,
remains unchanged......

42

A cause of action founded in tort, (the unlawful withholding posses-
sion of real estate,) is personal to the tort feasor; it dies with his
person, and cannot at common law be continued against his gran-
tee, by a transfer of his interest in such real property......... 71
Different counts setting forth several distinct causes of action for the
same indebtedness, not allowed. And where such appears upon
the face of the complant, no affidavit by the defendant that there
is but one cause of action is necessary..

91

In an action against defendant for damages for personal injuries,
by reason of a dwelling-house owned by him, being out of repair,
and it appeared by the complaint that third persons as tenants
and not the defendant, were the occupants, Held, that it was
upon the tenants, and not upon the landlord, that the duty of
keeping in repair presumptively rested. Complaint bad on de-
.... 163

murrer

Several causes of action upon promissory notes may be united in the
same complaint. They are not improperly united simply because
they are not separately stated......

184

There can be no necessity for dividing an action upon two promissory
notes, and making two separate actions of it...

184

Index.

ACTION. Where a defendant a licensee of a ferry was sued for damages, and
the complaint alleged that the defendant had authorized some
other person to run the ferry, and that the man having charge of
the skiff (which caused the alleged damage) was the servant of the
defendant's lessee, held, that the defendant was not liable for the
wrongful act of his lessee, or his lessee's servant, and the action
could not be maintained.....

PAGE

257
In an action to recover the possession of land, it is sufficient to aver in
the complaint that the plaintiff has lawful title as the owner in
fee simple, to the premises; that the defendant is in possession,
and unlawfally withholds possession thereof from him.......... 439
A sovereign or sovereign state, although they cannot be sued in the
courts of another state to enforce any remedy against them, they
may, however, be made parties and voluntarily appear, &c..... 517

AFFIDAVIT. An order extending the time to answer or demur to a com-
plaint may be disregarded, if unsupported by a sufficient affida-
vit of merits. What a sufficient affidavit is..

AMENDMENT. An application to amend a bond, defective in some respects,
must be made by all the obligors therein. How it should be
made......

313

... 94

A complaint may be amended by increasing the amount of damages
after the trial, where it will not actually mislead the defendant to
his prejudice. And this applies to actions pending when the
Code took effect.....

187

231

Plaintiff was allowed an amendment, upon terms, of the plead-
ings in the action, by striking out the name of one of the de-
fendants, after the cause had been brought to a hearing before
the referee and testimony taken....
When plaintiff's amendment of his pleadings, and subsequent proceed-
ings, bringing in new parties defendants, did not affect the par-
ties sought to be brought in, but was held irregular......
A judgment entered upon a defective service of summons by publica-
tion, is a nullity. Such a judgment is not aided by the 139th sec-
tion of the Code, and the fact that an attachment was issued in
the proceeding. Nor does the power of amendment extend to
such defects..
380

337

Under section 172 of the Code, a plaintiff cannot amend his complaint
more than once, as a matter of course, without leave of the court 495
The court may amend an informal notice of appeal nunc pro tunc........... 522

ANSWER. An answer which only controverts the allegations of the com-
plaint, is frivolous if it does not put in issue some allegation which
the plaintiff must establish to entitle him to a verdict......

46

Index.

PAGE

ANSWER. Statements of new matter in an answer to an action for assault and
battery, which consist entirely of circumstances of aggravation,
do not constitute a defence to the action, nor a counter claim... 46
A counter claim need not be sufficient to defeat the whole of the cause
of action against which it is interposed; but any other defence
consisting of new matter, except in actions for libel and slander,
must be an answer to the entire cause of action.....

46

A defendant's default only admits the material and traversable mat-
ters set out in the complaint.....

46

A defence consisting of matter in abatement only cannot be set up in
an answer containing matters in bar of the action.......
The provision of the Code abolishing the forms of pleading does not
disturb the common law rule as to the order of introducing mat-
ters of defence......

61

61

97

97

... 97

An answer of new matter which does not state facts sufficient to con-
stitute a defence, is always insufficient, and may be demurred to.
Difference between counter claims and former set-offs. Stated......
Defendant by the Code is not required to avail himself of a counter
claim in an action, or in default be precluded from maintaining
an action. The Revised Statutes must govern this.......
Defendant may serve his answer without verification, or any affidavit
why he omits to verify it, when he would be privileged from tes-
tifying as a witness to the truth of the allegations of the com-
plaint......
An answer to a complaint in an action against the maker and
two indorsers of a promissory note, verified by one of the de-
fendants only, is insufficient in the verification. Such an answer
cannot be returned, but prompt notice should be given of its
insufficiency......

151

305

Where both the complaint and answer are defective in the verifica-
tion, the answer will be allowed to stand....

... 311

A verified answer setting up new matter as a defence, may be stricken
out as sham.

406

APPEAL. The statute authorizing prosecutions in forma pauperis, does not

extend to appeals under the Code ....

16

To review a decision in a cause tried by the court without a jury,
the only mode is by appeal under section 348 of the Code..... 67
Where three judicial tribunals are uniform in their decisions on ordi-

nary questions of law, it will be considered sufficient. And a
motion for an appeal to the court of appeals in actions arising in
a justice's or marine court, under such circumstances, will be de-
nied......
... 230
Requisite proceedings in a case, on an appeal from a justice's judgment,