arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona;(q) and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury." But in actions arising ex contractu, by breach of promise, and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors (r) being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before.

These pleas to the jurisdiction, to the disability, or in abatement, were for merly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now, by statute 4 & 5 Anne, c. 16, no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shown to the court to induce them to believe it true.18 And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better;(s) that is, show him how it might be amended, that there may not be two objections upon the same account. Neither, by statute 8 & 9 W. III. c. 31, shall any plea in abatement be admitted in any suit for partition of lands; nor shall the same be abated by reason of the death of any tenant.

*All pleas to the jurisdiction conclude to the cognizance of the court: praying "judgment, whether the court will have further cognizance of [*303 the suit:" pleas to the disability conclude to the person; by praying "judgment, if the said A. the plaintiff ought to be answered:" and pleas in abatement (when the suit is by original) conclude to the writ or declaration; by praying "judgment of the writ, or declaration, and that the same may be quashed," cassetur, made void, or abated; but, if the action be by bill, the plea must pray "judgment of the bill," and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.

When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction; or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court:(t) or to amend and new-frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.

2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.

A confession of the whole complaint is not very usual, for then the defendant would probably end the matter sooner, or not plead at all, but suffer judgment.

by the death of either party, but may be continued by the legal representative of sole plaintiff on his entering (by leave of the court) a suggestion of the plaintiff's death on the record; or by a surviving plaintiff when the cause of action survives; or against the legal representative of a defendant.-STEWART.

By statute 3 & 4 W. IV. c. 42, s. 2, an action of trespass, or trespass on the case, may be maintained by the executors or administrators of any deceased person for injury to his real estate in his lifetime, if such injury were committed within six calendar months before death and the action brought within one year after the time of the death; and an action of trespass, or trespass on the case, may also be maintained against executors or administrators for wrongs committed by the deceased to another's property, real or personal, such injury having been committed within six months of the death and the action brought within six months after administration taken.-Stewart.

18 Sham pleas are not dilatory pleas within the statute, and an affidavit is not necessary in all cases: thus, a plea of privilege as an attorney of the same court, to be sued by bill, it is supposed does not require an affidavit. 3 B. & P. 397. 1 Chit. on Pl. 401. As to the form of the affidavit, see 1 Chit on Pl. 402. Tidd, 8th ed. 693.—CHITTY.

VOL. II.-14

269

to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender; adding, that he has always been ready, tout temps prist, and still is ready, uncore prist, to discharge it for a tender by the debtor and refusal by the creditor will in all cases discharge the costs, (u) but not the debt itself; though in some particular cases the *304] creditor will totally lose his money.(v) *But frequently the defendant confesses one part of the complaint, (by a cognovit actionem in respect

:

19 That is to say, if the only right which A. has to the money arise from the offer which B. makes to him of it, and he once refuse to accept that offer, he thereby loses all right, and of course can bring no action. The case put by lord Coke is, "If A., without any loane, debt, or dutie preceding infeoff B. of land, upon condition for the payment of a hundred pounds to B., in nature of a gratuitie or gift, in that case if he (A.) tender the hundred pounds to him (B.) according to the condition, and he refuseth it, B. hath no remedie therefor." Here B. had primarily no title to the land or the money: if he does not accept it, therefore, when offered, no debt is due to him, but A. by the offer has discharged his land from that burden which he had voluntarily imposed on it. But supposing the land to have been mortgaged by A. to B. for money lent, which A. is to repay on a certain day, then if the money is duly tendered on the day and refused, A. shall have his land again, because he has performed the condition; but still B. may bring an action for his money..

The plea of tender must always, except in the case above supposed, be accompanied by a bringing of the sum tendered into court, or the plea is a mere nullity; and though the plaintiff denies that the tender was made before he commenced the action, or disputes the sufficiency of the sum tendered, and therefore goes on with the action, still he is entitled to take that sum out of court at once, which the defendant by the tender has admitted to be his due. If, however, he neglects to do so, and a verdict on either point should pass for the defendant, the court will then lay hold of the money as a security for the defendant's costs. Le Grew vs. Cook, 1 B. & P. 332. See also Birks vs. Trippet, 1 Saund. Rep. 33, a., note.-COLERIDGE.

As to the form and requisites of this plea in assumpsit, see 3 Chit. on Pl. 4th ed. 992; in debt, id. 955, and Lee, Prac. Dict. tit. "Tender;" and as to the payment of money into court on, see Tidd, 8th ed. Index, tit. "Money;" Lee, Dict. tit. "Payment of Money into Court." As to the replication, &c., see also 3 Chit. on Pl. 1151 to 1156, and Lee, Dict. tit. "Tender."

As questions relative to the tender of a debt or money are of so frequent occurrence, we will consider the respective rules and decisions under the following heads: 1st. What is a good tender. 2d. In what cases it may be made. And lastly, the effect and advantages gained by it, and how these may be superseded.

1. WHAT IS A GOOD TENDER.-It is a general rule, that, in order to constitute a good legal tender, the party should not only be ready to pay, and make an actual offer of the sum due, but actually produce the same, unless such production be dispensed with by the express declaration of the creditor that he will not accept it, or by some equivalent act. 10 East, 101. 5 Esp. R. 48. 3 T. R. 684. Peake, C. N. P. 88. 1 Cromp. 152. 2 M. & S. 86. 7 Moore, 59. If the plaintiff do not object to receive the money, it is not sufficient for the defendant to prove that he had the money with him and held it in a bag under his arm he ought to have laid it down for him. Id. ibid. Bull. N. P. 157. 6 Esp. 46. If A. says, 66 I am not aware of the exact balance, but if any be due I am ready to pay it," this is no tender. 15 East, 428.

With respect to the nature of the money tendered, it should be in the current coin of the realm, and not in bank-notes; and see the 56 Geo. III. c. 68, s. 11, by which gold coin is declared to be the only legal tender. But a tender in bank-notes is good unless particularly objected to on that account at the time. 3 T. R. 554. 2 B. & P. 526. So is a tender of foreign coin made current here by royal proclamation. 5 Rep. 114, b. So is a tender of provincial bank-notes, or a draft on a banker, unless so objected to. Peake N. P. 3d ed,239. Tidd, 8th ed. 187, n. f. It seems that as any money coined at the mint upon which there is the king's stamp is good, and that all such money is good in proportion to its value, without a proclamation, such money would be a good tender. 2 Salk. 446.

With respect to the amount of the sum tendered, it should in general be an offer of the specific sum due, unqualified by any circumstance whatever; and therefore tendering a larger sum, and making cross-demand, is insufficient. 2 D. & R. 305. A tender of 207. in banknotes, with a request to pay over the difference of fifteen guineas, is not a good tender ne to the fifteen guineas, though it would have been otherwise if the tender had been in

thereof,) and traverses or denies the rest: in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate. A species of this sort of confession is the payment of money into court:(w) which

(*) Styl. Pract. Reg. (edit. 1657) 201. 2 Keb. 555 Salk. 596.

guineas. 3 Camp. 70. 1 Camp. 181. 6 Taunt. 336. But a tender of a larger sum generally is good. 5 Rep. 114. 8 T. R. 683; sed vide 2 Esp. 711. And a tender of a larger sum, and asking change, is good, provided the creditor do not object to it on that account, but only demands a larger sum. 6 Taunt. 335. Peake C. N. P. 88. 2 Esp. C. 711. 3 Camp. 70; and see 1 Gow. C. N. P. 121. Á tender of a sum to A., including both a debt due to A., B., and C. and also a debt due to C., is a good tender of the debt due to the three, (3 T. R. 683;) and if several creditors, to whom money is due in the same right, assemble for the purpose of demanding payment, a tender of the gross sum, which they all refuse on account of the insufficiency of the amount, is good. Peake C. 88. 2 T. R. 414.

To constitute a good tender, it must be an unconditional one in payment of the debt; and therefore where a tender of payment was made, accompanied with a protestation against the right of the party to receive it, it was held insufficient. 3 Esp. C. 91. So is a tender accompanied with the demand of a receipt in full, (5 Esp. Rep. 48. 2 Camp. 21; sed vide Peake C. 179. Stark, on Evid. part 4, 1392, n. (g),) or upon condition that it shall be received as the whole of the balance due, (4 Camp. 156,) or that a particular document shall be given up to be cancelled. 2 Camp. 21. To constitute a good tender of stock, the buyer must be called on opening the books, (1 Stra. 533,) and the defendant must do all in his power to make it good. I Stra. 504.

With respect to the time of the tender, it should be observed that, in order to avoid the defendant's liability to damages for the non-performance of the contract, it should be made in the very time agreed upon for the performance of such contract: a tender after such time only goes in mitigation of damages for the breach of the contract, and not even then if the tender be not made before the writ sued out. 7 Taunt. 487. Sce 21 Jac. I. c. 16, s. 5. It is said to have been decided by Buller, J., that a tender on the day the bill is filed is not available, there being no fraction of a day, (Imp. K. B. 324:) consequently, if payment of a bill has been demanded on the day it was due, and the acceptor plead a subsequent tender, it will not avail. 8 East, 168. 5 Taunt. 240. 1 Marsh Rep. 36. 1 Saund. 33, a., note 2. But that doctrine is not law; and it is no answer to a plea of tender that the plaintiff had, before the tender, instructed his attorney to sue out the writ, and that the attorney had applied before the tender for the writ which was afterwards sued out, (8 T. R. 629;) and if the plaintiff brings his action, and discontinues it and commences another, a tender before the latter action is good. I Moore, 200. To constitute a good tender of stock, it should be made on the very day, (1 Stra. 579;) and at the last part of the day it can be accepted. 2 id. 777, 832. Any party, being an agent of the debtor, may tender the money. 2 M. &. S. 86.

With respect to the persons to whom the tender should be made, it will suffice if it be to the creditor or any authorized agent. 1 Camp. 477. Tender to an attorney, authorized to issue out a writ, &c., is good. Dougl. 623. And a tender to an agent has been held good although the principal had previously prohibited the agent from receiving the money if offered, the principal having put his business into the hands of his attorney. 5 Taunt. 307. 1 Marsh. 55, S. C. Á bailiff, who makes a distress, cannot delegate his authority: therefore a tender to his agent is insufficient, (6 Esp. 95;) and a tender to one of several creditors is a tender to all. 3 T. R. 683.

2dly. IN WHAT CASES A TENDER MAY BE MADE WITH EFFECT.-In general, a tender can only be made with effect in cases where the demand is of a liquidated sum, or of a sum capable of liquidation by computation. See 2 Burr. 1120. Therefore a tender cannot be pleaded to an action for general damages upon a contract, (1 Vent. 356. 2 Bla. Rep. 837. 2 B. & P. 234. 3 B. & P. 14:) or in covenant, unless for the payment of money, (7 Taunt. 486. 1 Moore, 200, S. C. 5 Mod. 18. 1 Lord Raym. 566. 12 Mod. 376. 2 H. Bla. 837;) or for a tort, (2 Stra. 787, 906. 7 T. R. 335,) or trespass. 2 Wils. 115. It cannot be pleaded to an action for dilapidations, (8 T. R. 47. Stra. 906;) or for not repairing, (2 Salk. 596 ;) or against a carrier for goods spoiled, though the tender should be of the invoice-price, (2 B. & P. 234;) or for not delivering goods at a certain price per ton. (3 B. & P. 14;) or in an action for a false return, (7 T. R. 335;) or for mesne profits 2 Wils. 115. But in assumpsit against a carrier for not delivering goods, the defendant having advertised that he would not be answerable for any goods beyond the value of 201. unless they were entered and paid for accordingly, a tender of the 20/. would, it seems, be available. 1 H. Bla. 299. So a tender may be made with effect to a demand for navigation, (Calls. 7 T. R. 36. 1 Stra. 142,) or in an action for principal and interest due on bonds for payment of moneys by instalments. 3 Furr. 1370. So the penalty of

is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; by paying into the hands of the proper officer of the

a bond may with effect be tendered. 2 Bla. 1190. So the arrears of a bond for 407. payable by 51. per annum. 2 Stra. 814. So a tender may with effect be made in covenant for rent, or for the advanced rent of 5. per acre for ploughing meadowgrounds. 2 H. Bla. 837. 7 Taunt. 486. 1 Moore, 200, S. C.; and vide 2 Salk. 596. So also on a policy of insurance, (19 Geo. II. c. 37, s. 7. 2 Taunt. 317;) or in debt for penalty for exercising trade contrary to 5 Eliz, c. 4, (1 Burr. 431;) or for penalty on game-laws, being actions popular, and not qui tam. 2 H. Bla. 1052, 2 Stra. 1217. Where a party has wrongfully possessed himself of goods, no tender of freight is necessary in order to enable the party to maintain the action. 2 T. R. 285.

Justices of the peace, and in like manner excise and custom-house officers, and surveyors of highways, are enabled by several statutes to tender amends for any thing done by them in the execution of their offices. See ante, 1 book, 354, n. 37, et seq. Also by the 21 Jac. I. c. 16, s. 5, in case of involuntary trespasses, tender of amends may be made. See ante, 16.

Lastly, AS TO THE EFFECT OF A TENDER, AND THE ADVANTAGES ACQUIRED BY IT.-It should in the first place be observed that the debtor is liable for the non-performance of his contract if the money be not paid at the time agreed upon: the mere tendering the money afterwards is not sufficient to discharge him from such liability; it goes only in mitigation of damages; though, indeed, if a jury should find that no damages were sustained by reason of the defendant not tendering the money at the time agreed upon, the defendant would defeat the action by the tender afterwards. See Salk. 622. 8 East, 168. 1 Lord Raym. 254. 7 Taunt. 486. The tender of money due on a promissory note, accompanied with a demand of the note, stops the running of interest. 3 Camp. 296. 8 East, 168, 4 Leon. 209. The tender, if pleaded, admits the contract and facts stated in the declaration. 3 Taunt. 95. Peake, 15. 2 T. R. 275. 4 T. R. 579. If, therefore, the defendant's liability is to be disputed, a tender should not be pleaded. So if there be a special count, and the defendant mean to deny it, the tender should be pleaded to the other counts only, (and see Tidd, 8th ed. 676;) and if there be any doubt as to the sufficiency of the tender, it is not advisable to plead it, but more expedient to pay the amount into court upon the common rule; for if the defendant should not succeed in proving the tender he will have to pay all the costs of the trial; whereas, if the money be paid into court, and the plaintiff cannot prove more due, he will be liable to pay all costs subsequent to the time of paying the money into court. If the sum tendered be not sufficient, and the plaintiff should succeed on the general issue, the plaintiff would still be entitled to the costs of the issue on the plea of tender. 5 East, 282. 5 Taunt. 660. If the defendant bring money into court on a plea of tender, the plaintiff may take it out, though he deny the tender. 1 B. & P. 332. The plaintiff, it seems, can gain no advantage by not taking the money out of court; and it has been said that if the plaintiff will not take the money, but takes issue on the tender and it is found against him, the defendant shall have it. 1 B. & P. 334, note a. Lord Raym. 642. 2 Stra. 1027. If the plaintiff should succeed on the trial in proving a larger sum to be due than that tendered, though that sum be below 40s., yet the plaintiff will be entitled to costs. Doug. 448. But where the debt originally was under 57. the defendant is, it seems, entitled to the benefit of the Court of Requests' Act for London, though he has pleaded a tender (5 M. & S. 196) or paid money into court. 5 East. 194.

A tender not being equivalent to payment itself, and only suspending the plaintiff's remedy, (2 T. R. 27,) its effect may be superseded by prior or a subsequent demand and refusal to pay the precise sum tendered. 1 Camp. 181. 5 B. & A. 630. A subsequent demand of a larger sum will not suffice, (id.,) nor a subsequent demand accompanied by another demand of another sum not due. 1 Esp. 115. 7 Taunt. 213. Such demand should be made by a person authorized to give the debtor a discharge. 1 Camp. 478, n. 1 Esp. 115. A demand made by the clerk of the plaintiff's attorney, who was an entire stranger to defendant, is insufficient. 1 Camp. 478. A subsequent application to one of two joint debtors, and a refusal, is sufficient. 1 Stark. 323. 4 Esp. 93. Noy, 135. Vin. Abr. Evid. T. b. 97. Delivering a letter at defendant's house to a clerk, who returned with an answer that the debt should be settled, is prima facie evidence of a demand. 1 Stark. 323. A prior demand, and refusal, is an answer to the plea of tender. 8 East, 168. 1 Saund. 33, n. 2. Bull. N. P. 156. 1 Camp. 478.-CHITTY.

20 The allowing the defendant to pay money into court was introduced for the purpose of avoiding the hazard of proving a tender; and in all cases where there has been no tender, or the tender cannot be proved, it should not be pleaded, but the defendant should merely pay the admitted claim into court. The cases in which the proceeding is allowed are similar to those in which a tender may be pleaded, and which will be found supra, note (19). One case, however, should be noticed, viz., where the goods have been taken

court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any further proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit, (the perfect tense of the verb affido,) being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court." If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for, if he does not prove more due than is so paid into court, he shall be non-suited and pay the defendant costs; but he shall still have the money so paid in; for that the defendant has acknowledged to be his due." In the French law the rule of practice is grounded upon principles somewhat similar to this; for there, if a person be sued for more than he owes, yet he loses his cause if he doth not tender so much as he really does owe.(w) To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff's demand on the one hand, but on the other sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and, in case he pleads such set-off, must pay the remaining balance into court. This answers *very nearly to the compensatio, or stoppage, of the civil law,(x) [*305 and depends on the statutes 2 Geo. II. c. 22, and 8 Geo. II. c. 24, which enact, that where there are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff's demand."

under a mistake without any loss to the owner, the court, upou motion, will stay the proceedings in an action of trespass against a public officer, upon the defendant's undertaking to restore them or to pay their full value with the costs of the action. 7 T. R. 53.-CHITTY.

21 By statute 3 & 4 W. IV. c. 42, s. 21, and now by the Common-Law Procedure Act, 1852, the defendant in all actions (except actions for assault and battery, and false imprisonment, libel, slander, malicious arrest or prosecution, crim. con., or debauching the plaintiff's daughter or servant) may, by leave of the court or a judge, pay into court a sum of money by way of compensation or award.-STEWART.

22 The effect of the payment of money into court is nearly similar to that of a tender. See supra, note (19). Lee's P. Dict. 2d ed. 1013. Tidd, 8th ed. 676. This is the only case where a party is bound by the payment of money, (2 T. R. 645 ;) and, though paid in by mistake, the court will not order it to be restored to defendant, though perhaps in a case of fraud they would. 2 B. & P. 392.-CHITTY.

23 But in such case notice must be given at the time of pleading the general issue; and as to the mode of setting off, see 1 Chitt. on Pl. 4th ed. 494 to 497.

In some cases this plea or notice is unnecessary, as where the defendant's demand is more in the nature of a deduction than a set-off. Thus, a defendant is in all cases entitled to retain or claim by way of deduction all just allowances or demands accruing to him, or payments made by him, in respect of the same transaction or account which forms the ground of action: this is not a set-off, but rather a deduction. See 1 Bla. Rep. 651. 4 Burr. 2133, 2221. And where demands originally cross, and not arising out of the same transaction, have by subsequent express agreement been connected and stipulated to be deducted or set off against each other, the balance is the debt, and the only sum recoverable by suit without any special plea of set-off, though it is advisable in most cases, and necessary when the action is on a specialty, to plead it. 5 T. R. 135. 3 T. R. 599. 3 Taunt. 76. 2 Taunt. 170. In actions at the suit of assignees of bankrupts, a set-off need not be pleaded or given notice of, (1 T. R. 115, 116. 6 T. R. 58, 59,) though the practice is so to plead, or give notice of such set-off.

It may be important here also to observe that these acts were passed more for the benefit of the defendants than the plaintiffs, and are not imperative; so that a defendant may have his right to set off and bring a cross-action for the debt due to him from the plaintiff, (2 Camp. 594. 5 Taunt. 148,) though he cannot safely arrest. 3 B. & Cres.