(dissenting):
It may be conceded, in disposing of the plaintiff’s motion for a new trial, that from all the evidence it was established as an undisputed fact that the general assignment made by Wilson for the benefit of his creditors preceded in point of time the assignment under which the plaintiff claims title. The plaintiff insists, however, that the cause of action set out in the complaint and her title thereto were not in issue on the trial, and that both those questions of fact were conceded by the defendant by the payment of the money into court, as damages; that by offering proof on her part as to the source of her title, and when the assignments were made, she did not deprive herself of the benefits of the defendants’ admissions.
The defendants, by their plea of tender and payment of the sum so alleged to have been tendered into court, impliedly acknowledge the cause of action as described in the complaint, and that the plaintiff is entitled to recover thereon in her own right, and the only question remaining to be determined on the trial was the amount of damages to which the plaintiff was entitled. This rule of practice prevails although the answer contains a general denial of the plaintiff’s complaint. The plaintiff was not put to proof for the purpose of establishing a cause of action in her favor, of the nature and character of the one set forth in her pleadings. The act of the defendant in paying the money into court is to be treated as an admission by the defendant that they owe that sum to the plaintiff upon the cause of action as alleged in the complaint.
*97The defendants contend that by .paying the money into court they simply admitted tliat there was so much due the plaintiff, and its sole effect was to strike so much out of the complaint, and if the plaintiff claims a greater sum in damages she must prove everything to entitle her thereto, precisely in the same manner as if no money had been paid in ; that the payment of the money into court was not an admission of the original cause of action as set up in the complaint and that the plaintiff was entitled to recover thereon. This view was taken by the court below, and for that reason the nonsuit was granted.
In Johnston v. Columbian Insurance Company (7 Johns., 315) the action was on a marine policy as for a total loss. The defendant pleaded the general issue and paid into court a sum of money, under the common rule, upon the whole declaration. It was held that the payment of money into court was an admission of the cause of action as alleged in the declaration.
In Yate v. Willan (2 East, 128) the action was also founded on a marine policy, and it was there held that the payment of money into court, upon a count stating a special contract, is an admission of such contract and narrows the inquiry on the trial to the quantum of damages sustained by the breach thereof.
In numerous other eases the rule is stated to the same effect, thus, if money be paid into court in an action on a bill of exchange there is no necessity of proving the defendant’s handwriting (Gutteridge v. Smith, 2 H. Black, 374), if, in an action of covenant, the execution of the deed is admitted. (Randall v. Lynch, 2 Camp., 357.)
It is also conclusive as an admission of the plaintiff’s right to sue (Shippey v. Denison, 5 Esp., 191), and of his right to the character in which he sues (Lipscombe v. Holmes, 2 Camp., 441; Randall v. Lynch, Id., 357), and precludes the objection that another should have been joined as plaintiff (Walker v. Rawson, 1 Moody & Rob., 250; Burrill’s Pr. [vol. 1], 407, 408, and cases there cited; Graham’s Pr. [2d ed.], pages 537, 538).
The reason assigned for this rule of practice is, that as the defendant only disputes the amount of damages to which the plaintiff is entitled, the plaintiff only comes prepared to prove that his damages are greater than the sum paid into court.
If these views are adopted by my brethern as sound, it is unneces*98sary to consider the form in wbicb the verdict should be rendered, if the plaintiff should fail to establish that her damages were greater than the sum tendered.
As the evidence was conflicting upon the question as to the amount unpaid by the defendants upon their contract with Wilson, the plaintiff’s assignor, and whether there was a tender made before suit brought, these questions should have been submitted to the jury for their consideration.
I think the judgment and the order should be reversed, and a new trial granted, with costs to abide event.
Judgment and order affirmed.