In a case of gross

accounts is necessary to attain the result. fraud appearing, the court, upon affidavit of the complainant, and on considering the affidavit of the defendant in answer thereto, ordered the money to be paid into court before answer. But the court will not in any case order money to be paid into court before answer, where there is a probability of a balance in favor of the defendant. The cases in which the application for this order are most usually made are upon admissions, in cases of executors and trustees, and vendors and purchasers. Where the defendant's answer contains a clear admission that there is trust money in his hands, the court will always, on an interlocutory application, order it to be paid into court. Where an application is made against an executor or trustee, an admission is sufficient. It need not appear that the fund is in danger or insecure. The court will, upon motion, order the purchaser of an estate, being in possession un

41 Hoffman, Ch. Pr. 320; Mills v. Hanson, 8 Ves. 68; Roe v. Gudgeon, Coop. 304.

51 Barbour, Ch. Pr. 236; Jervis v. White, 6 Ves. 738; Blackburn v. Stace, 6 Madd. 696. Where a part of the complainant's claim is admitted by the answer, such part may be ordered to be paid immediately, without awaiting the result of the litigation as to the residue. Clarkson v. De Peyster, Hopk. Ch. (N. Y.) 505.

61 Hoffman, Ch. Pr. 325; 1 Barbour, Ch. Pr. 237; Rothwell v. Rothwell, 2 Sim. & S. 217. For cases involving application for order upon admissions, see Strange v. Harris, 3 Brown, Ch. 365; Mills v. Hanson, 8 Ves. 68; Hatch v. - 19 Ves. 116; Vigrass v. Binfield, 3 Madd.

62; Morrissey v. Foley, 2 Molloy, 346; Yare v. Harrison, 2 Cox, 377; Mortlock v. Leathes, 2 Mer. 491; Foster v. Donald, 1 Jac. & W. 252. Where money in controversy in a suit is held by a nominal party solely as trustee for another person not a party to the record, the court, at the instance of the party in interest, may order it to be paid into court. Where the holder of money, being an officer of the government, has ceased to be such officer during the pendency of the suit, the court should order the money to be paid into court. Nusbaum v. Emery, 5 Biss. 393, Fed. Cas. No. 10,381.

71 Hoffman, Ch. Pr. 321; Strange v. Harris, 3 Brown, Ch. 365; Blake v. Blake, 2 Schoales & L. 26; Hosack v. Rogers, 6 Paige (N. Y.) 415; Rutherford v. Dawson, 2 Ball & B. 17; Leigh v. Macaulay, 1 Younge & C. 260. For other cases involving payment of money into court by

der an agreement, to pay the purchase money into court, where he has approved of the title, or even in a case where it appears upon the face of the abstract that the title is bad, but the purchaser has sold the estate to another person; or where the time. is fixed for the payment of the purchase money by installments, and the property is a coal mine, and the defendant is deriving a benefit from working it; or where the purchaser exercises acts of ownership on the estate, as by cutting timber and underwood; or where the purchaser has taken possession without the consent or privity of the vendor. But if the vendor permits the purchaser to take possession before the completion of the title, without any stipulation as to the purchase money, he cannot, on motion, have the purchase money paid into court. Though a defendant makes an admission which would entitle the complainant to a decree, the complainant cannot for that reason move for payment of money into court. The general rule as to the payment of money into court is that the complainant must be solely entitled, or have such an interest, jointly with others, as to entitle him, on behalf of himself and those others, to have the fund secured.10 It is said that money in the hands of a banker, or of a mercantile house in which the defendant is a partner, is considered, upon this motion, as in the

executors and trustees, see Rothwell v. Rothwell, 2 Sim. & S. 218; Curgenven v. Peters, 3 Anstr. 751; Carmichael v. Wilson, 3 Molloy, 92; Johnson v. Aston, 1 Sim. & S. 73; Collis v. Collis, 2 Sim. 365; Widdowson v. Duck, 2 Mer. 494.

81 Barbour, Ch. Pr. 239; Walters v. Upton, Coop. 92, note; Boothby v. Walker, 1 Madd. 197; Blackburn v. Stace, 6 Madd. 69; Clarke v. Elliott, 1 Madd. 606; Buck v. Lodge, 18 Ves. 450; Burroughs v. Oakley, 1 Mer. 52; McKim v. Thompson, 1 Bland (Md.) 161; Birdsall v. Waldron, 2 Edw. Ch. (N. Y.) 315; Johnson v. Sukeley, 2 McLean, 562, Fed. Cas. No. 7,414; Bonner v. Johnston, 1 Mer. 366. For other cases involving the payment of money into court in cases of vendor and purchaser, see Bradshaw v. Bradshaw, 2 Mer. 492; Cutler v. Simons, 2 Mer. 103; Wickham v. Evered, 4 Madd. 53; Dixon v. Astley, 1 Mer. 133; Fox v. Birch, 1 Mer. 105; Freebody v. Perry, Coop. 91; Gibson v. Clarke, 1 Ves. & B. 500; Binns v. Mount, 28 N. J. Eq. 24. 1 Barbour, Ch. Pr. 238; Peacham v. Daw, 6 Madd. 98. 10 Freeman v. Fairlie, 3 Mer. 29; 1 Barbour, Ch. Pr. 240.

13

hands of the defendant.11 Generally, a partner, admitting the receipt of money, but insisting there is a balance in his favor, will not be ordered to pay the sum in his hands into court; but if he has received it in a manner in which he ought not to have received it, he will be ordered to bring it into court.12 The court will, in general, only order the principal sum due from the defendant to be paid in, and not the interest; but where a defendant, by his answer, admits that he has received a principal sum, and interest to a greater amount, he will be ordered, on motion, to pay in the interest.1 Where an executor admitted that he had received certain sums, but said that he had paid money on account of the estate, without specifying the amount, he was allowed to verify the amount by affidavit, and ordered to pay the actual balance only into court.14 The application for this purpose may be by special motion, or petition on notice.15 Affidavits are admitted, after answer, to be read in support of a motion to pay purchase money into court.16 If the court is satisfied that the order applied for ought to be made, the defendant is directed to pay the money into court on a certain day named in the order.17 Although the court has no authority to make any compulsory order on any person not a party to the suit, yet it will order that a person who has

11 Johnson v. Aston, 1 Sim. & S. 73; 1 Hoffman, Ch. Pr. 325. 12 Foster v. Donald, 1 Jac. & W. 252.

131 Barbour, Ch. Pr. 241; 1 Hoffman, Ch. Pr. 326; Wood v. Downes, 1 Ves. & B. 50; Fairly v. Freeman, cited in 1 Ves. & B 50; Clarkson v. De Peyster, 1 Hopk. Ch. (N. Y.) 505; De Peyster v. Clarkson, 2 Wend. (N. Y.) 77.

141 Barbour, Ch. Pr. 241; 1 Hoffman, Ch. Pr. 326; Anonymous, 4 Sim. 359.

15 1 Hoffman, Ch. Pr. 319; Quarrell v. Beckford, 14 Ves. 177; Brooks v. Dent, 4 Md. Ch. 473.

16 1 Hoffman, Ch. Pr. 326; Bradshaw v. Bradshaw, 2 Mer. 492; Crutchley v. Jerningham, 2 Mer. 502. See Texas v. White, 131 U. S. xcv.

171 Barbour, Ch. Pr. 241; Higgins v. — 8 Ves. 381. It is held that, upon moving on the answer of the defendant for the payment of money into court, the complainant may show that, upon the case stated in the answer, he has an interest in the sum in question, or

received money on behalf of the complainant previous to the suit, although not a party, may be at liberty to pay the amount into court.18 A fund brought into court cannot be paid out by the officer of the court having it in custody to any one except in obedience to the order of the court, and a suit will not lie in a different forum to recover such money from such officer.19 But where money is deposited with the clerk of the court, as a tender, without the order of the court, and is never recognized or treated by the court as its fund, such deposit will not be considered a fund of the court, and the depositor may withdraw it at any time before the court has recognized it as a fund under its control, or the party for whom it was intended has manifested a willingness to receive it upon the terms upon which it was deposited.20 It is held that where a stranger to the suit claims an interest in the fund in court he must proceed for the purpose by bill;21 though it is also held that a petition is proper in such case.22 But as a general rule a petition is the proper course to reach the fund in chancery, where no other parties are to be brought in to litigate the application than are, or ought to have been, parties to the original bill.23

that a larger sum is due than is admitted, though the defendant, in his answer, expressly denies that the complainant has any such interest or that such sum is due. 1 Barbour, Ch. Pr. 241; Domville v. Solly, 2 Russ. 372. But this proposition is doubted in 1 Hoffman, Ch. Pr. 323, where it is said that the case last cited was dependent upon peculiar circumstances, and in support of the doubt is cited Peacham v. Daw, 6 Madd. 98.

18 1 Barbour, Ch. Pr. 241; Francis v. Collier, 5 Madd. 75.

19 Craig v. Governor, 3 Cold. (Tenn.) 244; Hammer v. Kaufman, 39 Ill. 87. See Bowden v. Schatzell, Bailey, Eq. (S. C.) 360.

20 Hammer v. Kaufman, 39 Ill. 87; Baker v. Hunt, 1 Wend. (N. Y.) 103.

21 Esterbrook Steel Pen Mfg. Co. v. Ahern, 31 N. J. Eq. 3; Evans v. Ellis, 5 Denio (N. Y.) 640; Lewis v. Cockrell, 31 Ill. App. 476. 22 Phillips v. Blatchford, 26 Ill. App. 606.

23 Hays v. Miles, 9 Gill & J. (Md.) 193, 31 Am. Dec. 70. For form of notice of motion for payment of money into court, see 2 Barbour, Ch. Pr. 432.

§ 369. Form of order to pay money into court.

[Title of court and cause.]

On reading the bill and answer in this cause [and due proof of service of notice of this motion], and on motion of J. E., solicitor for complainant, and on hearing E. F. in opposition to said motion [or, no one appearing to oppose],

It is ordered that the defendant, C. D., do, on or before the day of, A. D. -, next, pay into the hands of the clerk of this court, in trust in this cause, the sum of dollars, admitted by the answer of the said defendant to be due from him, and that when such money is paid it be deposited by said clerk in trust in

bank, to

the credit of this cause, there to remain until the further order of this court.

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