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Decisions of the Superior Courts of New South Wales, 1788-1899

Murry v. Dickson (1828) Sel Cas (Dowling) 872; [1828] NSWSupC 109

civil procedure, payment into court, pleadings, amendment of

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 27 December 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 114]

[Where a Defendant paid too much money into Court under a plea of tender, the Court allowed him to amend his plea and take out the excess]

Saturday 27th Decr 1828

Present

Forbes CJ.

Stephen J.

Dowling J.

Murry v Dickson

This was an action of assumsit the Defendant had pleaded a tender of 560£ and paid the money into Court the Plaintiff neglected to take the money out,  On a subsequent investigation [p. 115] of the accounts the Defendant discovered that he had paid 60£ too much into Court, and on a former day on the motion of Chambers, he obtained leave to amend his plea in this respect and have the 60£ paid out of Court to him.

Kerr now moved that the order be rescinded on the ground that he had had no notice, and at all events that the practice was irregular to allow money to be paid out of Court after being once paid in   He cited Archibald's R 203.

Per Cur as the Court may before trial allow pleading to be amended[1 ] there is no objection to the amendment of the plea to this case,[2 ] and allowing the Defendant at his peril to take back the money which he had had paid in by mistake.

Rule absolute

Notes

[1 ] The court did not allow substantial amendments to be made after the plea was pleaded:Henry v. Moore and Keith, 21 June 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 167.

[2 ] A marginal note next to this sentence says "See 1 Tidd 646".

Published by the Division of Law, Macquarie University