
    Eastman vs. Molineux.
    Where tho defendant pays money into couri, under the common rule, unless tlia plaintiff shall show that a greater sum than the sum so paid into court be due Mm, he will not be entitled to costs.
    Assumpsit. The case was submitted to the court for decision upon the following statement of facts :
    The action is brought on a promissory note, dated on the 8th day of August, 1837, on which are the following indorsements : “ Feb. 23, 1839. Received thirty-eight dollars seventy-five cents.” “Received interest on the within, up to Feb. 8, 1839.” The suit was brought at the January term, 1840, and shortly after its commencement, the defendant tendered to the plaintiff’s attorney the amount of debt and costs, which was refused, and the action was entered* The defendant, by mistake, did not appear at the term, but the action being continued for judgment to the April term, he then moved the court for leave to enter his appearance, which was granted. He then brought into court under the common rule, the sum of sixty-six dollars, the amount due on the note.
    It was agreed that such judgment should be rendered upon the foregoing facts as the court should order.
    Hazelton, for the plaintiff.
    
      Board-man, for the defendant.
   Gilchrist, J.

The case finds that the sum of sixty-six dollars, the amount due upon the note in suit, was brought into court by the defendant, under the common rule. The rule provides that unless the plaintiff shall accept the sum thus brought into court, with costs to be taxed by the court in full discharge of the suit, the sum shall be struck out of the declaration, and paid out of court to the plaintiff or his attorney; and upon trial of the issue, the plaintiff shall not be permitted to give evidence for that sum. This is the substance of the order made when money is paid into court. The 36th rule provides, that unless the plaintiff shall show that a greater sum than the sum so paid into court was due to him, he shall have no costs. 6 N. H. Rep. 582.

In the present case, the sum due the plaintiff has been brought into court. The plaintiff has not accepted it, with costs to be taxed by the court, in discharge of the suit. He is not, therefore, entitled to recover any part of the debt, because that is struck out of the declaration, and the rule expressly prohibits him from recovering any costs. But the rule also provides, that the defendant, in such cases shall be allowed his costs from the beginning. But as we understand that the parties have agreed that the fcourt shall render such judgment in this case, and in the subsequent case of Molineux vs. Eastman, infra, as may properly be rendered, whether the defendant should be allowed costs or not, is a question we shall reserve until the consideration of that case. In this case, therefore, the judgment of the court is only that the plaintiff is not entitled to costs.  