| Pa. | May 15, 1876
The judgment of the Supreme Court was entered, May 15th 1876,
It is said that the practice of paying money into court in cases where no tender had been made before suit, originated in the time of Charles the Second, when Kelyngfe was Chief Justice, to avoid the hazard and difficulty of pleading and proving a tender: 1 Tidd’s Practice, 4 Am. ed., by Fish, 619; 1 Penna. Practice by Fish, part 1, 436. It is well settled under this practice that the payment into court must be under a rule of the court, and that the money paid in is admitted to belong to the plaintiff, and in no event can be recovered and paid back to the defendant, even though the plaintiff goes on to a trial to recover a greater sum: 1 Tidd 619; 1 Penna. Pr. 436. At the time of bringing the money into court the defendant is bound also to pay costs up to that time. When that is done, if the plaintiff recover no greater sum than that brought into court, he cannot recover costs. Though analogous, this practice is not on the same footing as a tender before suit brought, followed by bringing the money into court under a rule. Yet in each case the money brought in is admitted to be due and owing to the plaintiff. The Act of 1705, second section (1 Purdon 488), and the Act of 12th of March 1867 (2 Purdon 1395), are both founded on the fact of atender, the former before suit brought, and the latter after suit and before trial. Under the terms of the Act of 1867, the tender must be of the admitted debt, and the costs already incurred. The same effect must necessarily be given to the Act of 1867, when the money is paid into court, as when it is paid in under the common-law practice, that is to say, that the payment is an act of record which admits the money to belong to the plaintiff, and therefore that the defendant cannot take it back.
In this case the rule for bringing the money into court shows that it was paid in under the Act of 1705, because it alleges that it is “ the amount which the defendant admits to be due to the plaintiff, and tendered to plaintiff by defendant before suit brought.” No costs were paid in along with the sum thus admitted. The case was referred to arbitrators, who reported an award for the plaintiff with costs, which imports a finding against the tender, for otherwise the award would have been for the defendant, the tender being a good plea in bar if sustained. The case, therefore, was left to rest simply on the payment of money into court, which put it out of the power of the defendant to take it back. We think that the court below erred in allowing the defendant to take out of court the excess of the sum paid into court above the sum of the award and the cost incurred up to the time of payment into court. This excess is $29.85.
The order of the court is therefore reversed, and it is now ordered that the defendant refund to the plaintiff the sum of $29.85, with interest from the date of the order, viz., December 15th 1875, and the record is directed to be remitted with instructions to carry this order into effect.