Burmester against Hilch
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1811 |
| Date | 25 May 1811 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 485
IN THE COURT OF KING'S BENCH
burmester against hilch. Saturday May 25th, 1811. Eule refused, to permit the defendant to pay into Court the debt and costs up to a certain day after the action brought, (thereby excluding the costs of the declaration delivered;) upon the ground of an offer to pay the debt and costs up to that period, without having made a tender before action, or obtaining the common rule for staying proceedings on payment of debt and costs up to the time of the application. This was a rule calling upon the plaintiff to shew cause why the defendant should not be at liberty to pay into Court 381. 10s., upon the first count of the declaration, (in assumpsit for wages earned on board a ship,) with the costs of the action to the 30th of April last inclusive; and why the plaintiff should not pay the costs subsequent 'to that time, if he accepted that sum in full of the damages for which the action was brought: and if he did not accept it, then why that sum should not be struck out of the declaration under the usual rule; and in the mean time proceedings be stayed. It appeared by the affidavits that the defendant having been arrested upon a bill of Middlesex, returnable the 1st of May, for 1021. made no objection to the debt to-the amount of 381. 10s., and by letter from his attorney to the plaintiff's attorney on the 30th of April, offered to pay the full sum for which this and another action had been brought, being in this action 381. 10s., and also the costs to be taxed up to that time; but no actual tender was made ; which offer was rejected ; a larger sum being then elaim-[552]-ed; and a declaration was delivered in this action on the 14th of May, with notice to plead in four days. And after an ineffectual application to a Judge at chambers to stay the proceedings on payment of 381. 10s, and costs up to the 30th of April, the defendant pleaded the general issue ; and then this rule was obtained. Hullock opposed the rule as introductive of a new practice to supply the place of a regular tender, and to supersede the common rule for paying money into Court on the usual terms. Taddy, in support of it, mentioned an instance of a similar rule obtained in this Court in Zwartewal v. Gowell and Another, M. 50 Geo. 3; and in the Court of C. P. in Roberts v. Lambert (a)2: and said that the money could not have been paid into Court before the declaration delivered. Lord Ellenborough, C.J. I...
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Carr v Smythies
...Taunt. 203), Roberts v. Lambert (2 Taunt. 283), and Johnson v. Houlditch (1 Burr. 578). (The Court referred him to Burmester v. : Hitch, (13 East, 551).) Lang Serjb., in shewing cause against the rule, read an affidavit, by which it appeared, that the Defendant's debt had been due to the Pl......
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...Sawbridge v. Coxwell, 4 Taunt. 255; Gibbon v. Copeman, 5 Taunt. 840, and 1 Marsh. 392; Last v. Benton, 2 Marsh. 478; Burmester v. Hikh, 13 East, 551. (of See the last note, supra, 273. 1 MAN. & G. 276. BEOWN V. WILDBOBE 339 I think, however, that the case should go back to the Master upon t......
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...process issues; for it was the duty of the defendant to have paid the debt and costs before [30] the writ issued. In Burmester v. Hilch (13 East, 551), the Court refused to permit the 4B.&C.31. OROZER V. PILLING 971 defendant to pay into Court the debt and costs, up to a certain day after t......
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...they recover no more, they shall have Ito costs; but [256] both those cases have been questioned in elate decision of Burntester v. Hitch, 13 East, 551. Onslow admitted that if the Plaintiff, in afterwards accepting the smaller sum, had receded from his rights, this rule must be discharged ......