Browne v Irvine [1913] ZAWLD 15 (6 June 1913)

Practice - Rule 38(b) - Payrnent into court - Right of plaintiff to take out money

Defendant before plea paid into Court a sum under rule 38 in satisfaction of a claim. In his plea he allocated the sum to a portion of the claim. Plaintiff filed a replication joining issue, but did not ask for payment out until trial but before judgment. Judgment was given for defendant with costs, and thereafter application was made to restrain t.he registrar from paying out to plaintiff.

Held, refusing the application, that the Court had a discretion to allow payment out at any stage of the proceedings, that before filing his replication the plaintiff had a right to take the money out in satisfaction, and that, subject to leave of the Court, he was entitled to payment out thereafter but before judgment.

Semble, where plaintiff by his delay in taking payment in satisfaction causes costs to defendant, the Court may prevent payment out until such costs are satisfied.

Semble, further, the mere possibility that defendant's costs when taxed may exceed the plaintiff's is not sufficient to justify the detention of the money.

English practice reviewed.
Manasewitz v De Sarigny (1909, T.H. 267) approved.