In the case of Boyden v. Moore, 5 Mass R. 372, Parsons C. J. states the rule to be, that unless the plaintiff will accept the money brought into court in full satisfaction, with costs to that time, the amount brought in shall be struck out of the declaration and on the trial the plaintiff shall not be permitted to give any evidence for that sum ; and if on the trial the defendant obtains a verdict, he will have all his costs taxed. This is understood to be the rule in the King’s Bench, and it has been practised upon in this part of the Commonwealth. But it is attended with injustice, if the plaintiff must either abandon the residue of his claim or subject himself to the payment of costs which accrued during the period when, by the defendant’s own admission, he had a good cause of action; and this reason probably led to a modification of the rule in 1820. We are of opinion that the rule as laid down in Boyden v. Moore, and amended and qualified by the 17th Rule, (16 Mass. R. 376,) is established here. By the rule, thus modified, if the plaintiff proceeds to trial and does not recover more than has been paid into court, he is not subject to pay costs accruing previously to the payment into court; but, on the other hand, he does not recover costs against the defendant.
In the case at bar, the plaintiff proceeded to trial under an evident mistake of his rights. Had the rule been understood by the judge at the trial, in the manner above stated, he would have yielded to the plaintiff’s offer and permitted him to go out of court with the money and his costs. Indeed such was the effect of the order given for taxing the plaintiff’s costs. Under these circumstances, we are of opinion that the plaintiff is entitled to relief. This may be had by the defendant’s now agreeing to pay the costs up to the time of bringing the money into court, including the auditors’ fees, and upon this condition retaining his verdict; otherwise the verdict will be set aside, and the parties will stand as they did before the trial took place.1
By Rev. Stat. c. 121, § 14, if a defendant pay money into court, the plainiiff shall in all cases be entitled to the costs which had previously accrued, though he may not recover a larger sum than is so brought into court.