Majority
p. 326Aikins vs. Colton.
Headnote
Where money is paid into Court ^ftcr is* sue joined, and the plaintiff ■proceeds in the suit, but Íísh thiseStde" mand beyond paid in, the°de* fendant is encostso/ihedefence incurred subsequent to the payment of com™°buf not to the costs previously ac-Motion for re-taxation. The defendant after issue joi»< ed paid a certain sum into court in satisfaction of the plain- ^ ^ tiff’s demand and of the costs then accrued. The plaintiff' took the money, and proceeded in his suit. On the trial of . ^ a the cause, after the evidence was closed on both sides, the pl^tiff submitted to a nonsuit. The defendant consequently became entitled to costs. In making up his bill, he char-§ed the costs incurred in the defence previous to the paymént of the money into court, which the taxing officer refused to allow; and he now appealed from the taxation,
E. C. Southerland, for defendant,
Clinton 4* Hasbrouck, for plaintiff,
By the Court,
The taxing officer properly rejected those charges. The payment of the money into court was an admission of the plaintiff’s demand to that amount. The plaintiff, therefore, had a good cause of action until the payment of the money, and until then the defendant had no defence. The defendant is entitled only to the costs incurred in the defence subsequent to the payment of the money into court. (2 Barnes, 230. 1 T. R. 629. id 710. 8 T. R. 408.) The motion, therefore, is denied.