Page:Federal Reporter, 1st Series, Volume 9.djvu/446

 YE 8EN0 CO. V. COBBITT. 481- �It may be-, then, that Hop Kee, when asked by the master in ©e- cember or January, said he had noit.socured any freight or passen- gers, but that doea not prove that he did net intend to or would not before the expiration of the lay days. How could he be expected to have procured a cargo when, so far as appears, his instructions to-^do so went out on the Garibaldi. That he did not afterwards procure the rice and oil, and acoept the passengers that Moy Toy and F une Gib had engaged in the mean time, was doubtless due to the fact that in a few days thereafter the master told him in effect that the vessel would not return to Portland, �The answer admits the liability of the defendants, as agents of the owners, to repay the $500 received by them as earnest money ; and therewith they brought into court $562.33, that being the amount, with interest and costs of suit, to date, — December 3, 1880, — and "tendered the same to the libellants," who received the amount from the clerk on December 23d. It is now contended that this sum ;5yas tendered in full of all claims in this suit, and that the accoptance of it by the libellants is a satisfaction of the whole claim and a bar to any further recovery. �A payment of money into court without a plea of a previouEi,te.nder, operates as a tender from that date, and admits so much of tl^e cause, of action. But the plaintiff is not thereby precluded from pjiosecuting his action for the remainder of his claim, although he cannot recover costs if he fails to recover more than the sum tendered, an^ may be required to pay them. But vsrhether the plaintiff may tal^e this money out of court, pending the litigation, either by his own motion or by leave of the court, is a question. In Alexandria v. Patten, 1 Cranch, it was said by the court, without argument, that on a plea of tender the plaintiff cannot take the piooey out of court a.nd proceed for more ; and in 2 Pars. S. & A. 486, it is said : "The practice in the English admiralty is, when money is paid into court as a tender, not to pay it out until the conclusion of the case;" citing The Annie Chitds, Lush. Adm. 509. But in Murray v. Bethune, 1 Wend. 191,: it was held that when money is brought into court, pending an action for the same and more, it is a pa-yment pro tanto, and the plaintiff bas a right to take it out, but the defendant not. And this, in my judgment, is the more convenient and therefore the better rule. The deposit in court is an unconditional admission that such an amount is due, and a tender of the same and more ; it is so far a payment beyond the power of the party to recall. See, also, Spalding v. Van- dercook, 2 Wend. 431; Sleght v. Ehindander, 1 Johns. 202. ��� �