§ 366. Form of order that complainant elect.

[Title of court and cause.]

It appearing that the complainant prosecutes the defendant both at law and in this court for one and the same matter, whereby he is doubly vexed, thereupon, on motion of O. R., solicitor for the defendant, it is ordered that the complainant, within

days after notice

of this order, elect whether he will proceed at law in the suit brought by him against the defendant, or in this court, upon his bill, and if he elects to proceed at law, or if he neglects to file such election within the said days, the bill in this cause shall thereupon stand dismissed, with costs, and, if he elects to proceed here, it is then ordered that he proceed no further in the suit at law without leave of this court.19

§ 367. Form of election.

[Title of court and cause.]

In pursuance of an order of this court, made in this cause, and dated the day of , the complainant doth hereby make his election to proceed in this court.

CHAPTER XIX.

PAYMENT OF MONEY INTO COURT.

$368. In general.

In some cases the court, upon the application of the complainant, will order money in the hands of the defendant to be paid into court by him, to abide the event of the suit. The time at which the application for this purpose is usually made is after the defendant's answer has been put in, but it may be made at any stage of the cause, provided the court is satisfied that money in which the complainant has an interest is in the defendant's hands, who has no equitable right to it, or that it is in danger of being lost.1 The application may be based either upon an admission in the defendant's answer, or, under special circumstances, upon an affidavit before answer. 2 The admission may appear upon the answer or the examination before the master, or the motion may be founded upon the schedules to an examination, added up under oath, where the defendant has omitted to do it.3 An order will not be granted if any more complicated examination of books or

11 Barbour, Ch. Pr. 236; 1 Hoffman, Ch. Pr. 319-326; Quarrell v. Beckford, 14 Ves. 177; Contee v. Dawson, 2 Bland (Md.) 264; Hopkins v. McEldery, 4 Md. Ch. 23; McKim v. Thompson, 1 Bland (Md.) 150; Anonymous, 2 Law J. Ch. 21; Rebhan v. Fuhrman, 21 Ky. Law Rep. 17, 50 S. W. 976; Brown v. De Tastet, 4 Russ. 126; Gordon v. Rothley, 3 Ves. 572; Creak v. Capell, 6 Madd. 114.

2 Jervis v. White, 6 Ves. 738.

31 Barbour, Ch. Pr. 237; 1 Hoffman, Ch. Pr. 319; Quarrell v. Beckford, 14 Ves. 177. But it is held that an affidavit of a parol admission is insufficient. McTighe v. Dean, 22 N. J. Eq. 81; Haggerty v. Duane, 1 Paige (N. Y.) 321.

accounts is necessary to attain the result. In a case of gross 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

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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.9 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

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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.

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.13 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.

181 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