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These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay ; but now by statute 4 & 5 Ann. c. 16, no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shewn to the court to induce them to be-: lieve 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);64that is, shew 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 lạnds ; 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 [*303] court : praying “judgment, whether the court will have further cognizance of 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 respondent 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 consessing 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 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 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 creditor will totally lose his money (v) (19). *But frequently the defendant confesses one part [*304)


(u) 1 Vent. 21.

(9) Brownl. 139. (1) Co. Entr. 271

(v) Litt. $338.Co. Litt. 209.

taken, carried away, or converted to his own attorney of the same court, to be sued by bill, use, the goods of the testator or intestate it is supposed does not require an affidavit. 3 in his lifetime or afterwards; and also for B. & P. 397. I Chit. on Pl. 401. As to the trespass committed on the lands of the de- form of the affidavit, see 1 Chit. on Pl. 402. ceased in his lifetime. Executors, &c. are Tidd, 8 ed. 693. also liable for such trespasses committed by (19) As to the form and requisites of this. the deceased in his lifetime. (2 R. S. 114. plea in assumpsit, see 3 Chit. on PL. 4. ed. 4, 5, 6)

992; in debi, id. 955, and Lee Prac. Dict. tit.. (18) Sham pleas are not dilatory pleas with- “ Tender;" and as to the payment of money in the statote, and an affidavit is not necessary into court on, see Tidd, G ed. index, tit. in all cases; thus, a plea of privilege, as an “Money;" Lee Dict. tit. “ Payment of Mo

(64) See Hov. n. (61) at the end of the Vol. B. III.

of the complaint (by a cognovit actionem in respect thereof) (20), and traverses or denies the rest : in order to avoid the expense of carrying that

(20) As to cognovits in general, see Tidd, 8 ed. 606 to 609. Lee's Dict. tit. Cognovit. ney into Court.” As to the replication, &c. and see 1 Gow. C. N. P. 121. A tender of a see also 3 Chit. on Pl. 1151 to 1156, and Lee sum to A., including both a debt due to A., B., Dict. tit. “ Tender."

and C., and also a debt due to C., is a good As questions relative to the tender of a debt tender of the debt due to the three, 3 T. R. or money are of so frequent occurrence, we 683; and if several creditors, to whom money will consider the respective rules and deci- is due in the same right, assemble for the pur. sions under the following heads : Ist. What pose of demanding payment, a tender of the is a good tender. 2d. In what cases it may be gross sum, which they all refuse on account made. And lastly, the effect and advantages of the insufficiency of the amount, is good. gained by it; and how these may be super. Peake C. 88. 2 T. R. 414. seded.

To constitute a good tender, it must be an 1. What is A GOOD TENDER.-It is a ge- unconditional one in payment of the debt; and neral rule, that in order to constitute a good therefore where a tender of payment was made, legal tender, the party should not only be ready accompanied with a protestation against the to pay, and make an actual offer of the sum right of the party to receive it, it was held indue, but actually produce the same, unless sufficient. 3 Esp. C. 91. So is a tender acsuch production be dispensed with by the ex. companied with the demand of a receipt in press declaration of the creditor that he will full, (5 Esp. Rep. 48. 2 Campb. 21. sed vid. not accept it, or by some equivalent act. 10 Peake C. 179. Stark. on Evid. part 4. 1392. East, 101. 5 Esp. R. 48. 3 T. R. 684. Peake n. (g) or upon condition that it shall be reC. N. P. 88. i Cromp. 152. 2 M. & S. 86. ceived as the whole of the balance due, (4 7 Moore, 59. If the plaintiff do not object to Campb. 156.) or that a particular document receive the money, it is not sufficient for the shall be given up to be cancelled. 2 Campb. defendant to prove that he had the money with 21. To constitute a good tender of stock, the him, and held it in a bag under his arm, he buyer must be called on opening the books, 1 ought to have laid it down for hig. Id. ibid. Stra. 533. and the defendant must do all in his Bull. N. P. 157. 6 Esp. 46. If A. says, I am power to make it good. 1 Stra. 504. not aware of the exact balance, but if any be With respect to the time of the tender, it due I am ready to pay it, this is no tender. 15 should be observed, that in order to avoid the East, 428.

defendant's liability to damages for the non. With respect to the nature of the money performance of the contract, it should be made tendered, it should be in the current coin of in the very time agreed upon for the performthe realm, and not in bank notes; and see the ance of such contract; a tender after such 56 Geo WII. c. 68. s. 11, by which gold coin is time only goes in mitigation of damages for declared to be the only legal tender. But a the breach of the contract, and not even then tender in bank notes is good, unless particularly if the tender be not made before the writ sued objected to on that account at the time. 3 T. out. 7 Taunt. 487. See 21 Jac. I. c. 16. s. R. 554. 2 B. & P. 526. So is a tender of 5. It is said to have been decided by Buller, foreign coin made current bere by royal pro. J., that a tender on the day the bill is filed is clamation. 5 Rep. 114. b. So is a tender of not available, there being no fraction of a day, provincial bank notes, or a draft on a banker, Imp. K. B. 324; consequently, if payment of unless so objected to. Peake N. P. 3 ed. 239. a bill has been demanded on the day it was Tidd, 8 ed. 187. n. f. It seems, that as any due, and the acceptor plead a subsequent tenmoney coined at the mint upon which there is der, it will not avail, 8 East, 168. "5 Taunt. the king's stamp is good, and that all such 240. 1 Marsh. Rep. 36. I Saund. 33. a. note money is good in proportion to its value, with. 2. But that doctrine is not law, and it is no out a proclamation, such money would be a answer to a plea, of tender, that the plaintiff gond tender. 2 Salk. 446.

had before the tender instructed his attorney With respect to the amount of the sum ten- to sue out the writ, and that the attorney had dered, it should in general be an offer of the applied before the tender for the writ which specific sum due, unqualified by any circumstance was afterwards sued out, 8 T. R. 629; and if whatever ; and therefore tendering a larger the plaintiff brings his action, and disconti. sum, and making cross demand, is insufficient. nues it, and commences another, a tender be2 D. & R. 305. A tender of 201. in bank notes, fore the latter action is good. I Moore, 200. with a request to pay over the difference of To constitute a good tender of stock, it should fifteen guineas, is not a good tender as to the be made on the very day, 1 Stra. 579 ; and at fifteen guineas, though it would have been the last part of the day it can be accepted. 2 otherwise if the tender had been in guineas. Id. 777. 832. Any party, being an agent of 3 Campb. 70. I Campb. 181. 6 Taunt. 336. the debtor, may tender the money. 2 M. & But a tender of a larger sum generally is good. S. 86. 5 Rep. 114.

8 T. R. 683. sed vid. 2 Esp. With respect to the persons to whom the 711. "And a tender of a larger sum, and ask. tender should be made, it will suffice if it be ing change, is good, provided the creditor do to the creditor or any authorized agent. I not object to it on that account, but only de. Campb. 477. Tender to an attorney, authomands a larger sum. 6 Taunt. 336. Peake rized to issue out a writ, &c. is good." Dougl. C. N. P. 88.2 Esp. C. 711. 3 Campb. 70.623. And a tender to an agent has been held


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 is for

(w) Styl. Prac. Reg. (edit. 1657.) 201. 2 Keb. 555. Salk. 596.

good, although the principal had previously Justices of the peace, and in like manner prohibited the agent from receiving the money excise and custom house officers, and survey. if offered, the principal having put his busi- ors of highways, are enabled by several sta. ness into the hands of his attorney. 5 Taunt. lutes to tender amends for any thing done by 307. 1 Marsh. 55. S.C. A bailiff, who makes them in the execution of their offices. See a distress, cannot delegate his authority; ante, 1 book, 354 n. 37, et seq. Also by the therefore a tender to his agent is insufficient, el Jac. I. c. 16. s. 5. in case of involuntary 6 Esp. 95; and a tender to one of several trespasses, tender of amends may be made. creditors is a tender to all. 3 T. R. 683. See ante, 16.

2dly. IN WHAT CASES A TENDER MAY Lastly, As TO THE EFFECT OF A TENDER, BE MADE with EFFECT.-In general, a ten- AND THE ADVANTAGES ACQUIRED BY IT. der can only be made with effect in cases It should in the first place be observed, that where the demand is of a liquidated sum, or the debtor is liable for the non-performance of of a sum capable of liquidation by computa. his contract, if the money be not paid at the tion. See 2 Burr. 1120. Therefore a tender tiine agreed upon; the mere tendering the cannot be pleaded to an action for general da- money afterwards is not sufficient to discharge mages upon a contract, 1 Vent. 356. 2 Bla. him from such liability, it goes only in mitigaRep. 837. 2 B. & P. 234. 3 B. & P. 14; tion of damages ; though indeed if a jury or in covenant, unless for the payment of mo. should find that no damages were sustained ney,

7 Taunt. 486. I Moore, 200. S. C. 5 by reason of the defendant not tendering the Mod. 18. 1 Lord Raym. 566. 12 Mod. 376. money at the time agreed upon, the defendant 2 H. Bla. 837; or for a tort, 2 Stra. 787. 906. would defeat the action by the tender aster7 T. R. 335; or trespass. 2 Wils. 115. It wards. See Salk. 622. 8 East, 168. Lord cannot be pleaded to an action for dilapida. Raym 254. 7 Tannt. 486. The tender of tions, 8 T. R. 47. Stra. 906; or for not re- money due on a promissory note, accompanied pairing, 2 Salk. 596; or against a carrier for with a demand of the note, stops the running goods spoiled, though the tender should be of of interest. 3 Campb. 296. 8 East, 168. 4 the invojce price, 2 B. & P. 234; or for not Leon. 209. The tender, if pleaded, admits delivering goods at a certain price per ton, 3 the contract and facts stated in the declaraB. & P. 14; or in an action for a false re- tion. 3 Taunt. 95. Peake, 15. 2 T. R. 275. turn, 7 T. R. 335; or for mesne profits, 2 4 T. R. 579. If therefore the defendant's liaWils. 115. But in assumpsit against a carri- bility is to be disputed, a tender should not be er for not delivering goods, the defendant hav. pleaded. So if there be a special count, and ing advertised that he would not be answer. ihe defendant mean to deny it, the tender able for any goods beyond the value of 201., should be pleaded to the other counts only, unless they were entered and paid for accord and see Tidd, 8 ed. 676; and if there be any ingly, a tender of the 201. would, it seems, be doubt as to the sufficiency of the tender, it is available. 1 H. Bla. 299. So a tender may not advisable to plead it, but more expedient be made with effect to a demand, for naviga. to pay the amount into court upon the common tion. Calls. 7 T. R. 36. 1 Stra. 142; or in rule ; for if the defendant should not succeed an action for principal and interest due on in proving the tender, he will have to pay all bonds for payment of monies by instalments. the costs of the trial; whereas if the money 3 Burr. 1370. So the penalty of a bond may be paid into court, and the plaintiff cannot with effect be tendered.' 2 Bla. 1190.

So the prove more due, he will be liable to pay all arrears of a bond for 401., payable by 5l. per costs subsequent to the time of paying the annum.

2 Stra. 814. So a tender may with money into court. If the sum tendered be not effect be made in covenant for rent, or for the sufficient, and the plaintiff should succeed on advanced rent of 5l. per acre for ploughing the general issue, the plaintiff would still be meadow grounds, 2 H. Bla. 837. 7 Tannt. entitled to the costs of the issue on the plea 496. 1 Moore, 200. S. C. and vide 2 Salk. of tender. 5 East, 282. 5 Taunt. 660. If 596. So also on a policy of insurance, 19 the defendant bring money into court on a Geo. II. c. 37. s. 7. 2 Taunt. 317; or in debt plea of tender, the plaintiff may take it out, for penalty for exercising trade contrary to 5 though he deny the tender. 1 B. & P. 332. Eliz. c, 4. | Burr. 431; or for penalty on The plaintiff, it seems, can gain no advantage game laws, being actions popular, and not qui by not taking the money out of court; and it tam. 2 H. Bla. 1052.2 Sira. 1217. Where has been said, that if the plaintiff will not a party has wrongfully possessed himself of take the money, but takes issue on the tender, goods, no tender of freight is necessary in or- and it is found against him, the defendant shall der to enable the party to maintain the action. have it. 1 B. & P. 334. note a. Lord Raym. 2 T. R. 285.

642.2 Stra. 1027. 1. If the plaintiff should + See 2 R. S. 553, $ 20, &c.: 504, $ 28, &c. Ld. Raym. 612. But in Cor v. Robinson, 2 1 It has been said, that is upon tender plead- Str. 1027, it was decided that although such ed the plaintiff will not receive the money issue was found against the plaintiff, the deand takes issue upon the tender, and it is fendant could not, and that the plaintiff might found against him, the money is lost for ever. take it out of court. Litt. 9 338, limits this VOL. II.




the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff (21); by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any farther 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 nonsuited 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 (22). 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-of: 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

(w) Sp. L. b. 6, c. 4. succeed on the trial, in proving a larger sum prior demand, and refusal, is an answer to the to be due than that tendered, though that sum plea of tender. 8 East, 168. I Saund. 33. be below 40s., yet the plaintiff will be entitled n. 2. Bull. N. P. 156. I Campb. 478. to costs. Dougl. 448. But where the debt (21) The allowing the defendant to pay mo. originally was under 51. the defendant is, it ney into court was introduced for the purpose seems, entitled to the benefit of the court of of avoiding the hazard of proving a render, requests' act for London, though he has plead- and in all cases where there has been no ten. ed a tender, 5 M. & S. 196. or paid morrey der, or the tender cannot be proved, it should into court. 5 East, 194.

not be pleaded, but the defendant should mereA tender, not being equivalent to payment ly pay the adınitted claim into court. The itself, and only suspending the plaintiff's reme: cases in which the proceeding is allowed, are dy, 2 T. R. 27. its effect may be superseded similar to those in which a tender may be by prior or a subsequent demand and refusal, pleaded, and which will be found supra, note to pay the precise sum tendered. 1 Campb. (19). One case however should be noticed, 181. 5 B. & A. 630. A subsequent demand viz. where the goods have been taken under a of a larger sum will not suffice, id. ; or a sub- mistake, without any loss to the owner, the sequent demand, accompanied by another de- court, upon motion, will stay the proceedings mand of another sum not due. 1 Esp. 115. in an action of trespass against a public 7 Taunt. 213. Such demand should be made officer, upon the defendant's undertaking in by a person authorized to give the debtor a restore them, or to pay their full value, with discharge. i Campb. 478. n. 1 Esp. 115. the costs of the action. 7 T. R. 53. A demand made by the clerk of the plaintiff's (22) 'The effect of the payment of money attorney, who was an entire stranger to de- into court, is nearly similar to that of a tender. fendant, is insufficient. 1 Campb. 478. See supra, note (19). Lee's P. Dict. 2 ed. subsequent application to one of two joint 1013. Tidd, 8 ed. 676. This is the only case debtors, and a refusal, is sufficient. I Siark. where a party is hound by the payment of 323. 4 Esp. 93. Noy, 135. Vin. Ab. Evid. money, 2 T. R. 645 ; and though paid in by T. b. 97. "Delivering a letter at defendant's mistake, the court will not order it to be rehouse to a clerk, who returned with an answer stored to defendant; though perhaps in a case that the debt should be settled, is prima facie of fraud they would. 2 B. & P. 392. evidence of a demand. 1 Stark. 323. A consequence to attend the refusal to accept hundred pounds of B. and subsequently mort. the bail rendered to a condition relating to gage land to A. for repayment, and afterwards money to be paid in respect of land; but Co. iender A. the money and he refuse it, the land Litt. 209, qualifies the position by saying, that is discharged, but the debt remuineth and may if it were a duty before, as if A. borroweth a be recovered by action of debt.


sold to.the plaintiff, and in case he pleads such set-off, must pay the remaining balance into court. This answers *very nearly to [*305] the compensatio, or stoppage, of the civil law (r), 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 issues at the trial ;' which shall operate as payment, and extinguish so much of the plaintiff's demand (23.)

(6) Ff. 16. 2. 1.

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(23) But in such case, notice must be given into a rule not to sue for the debt intended to at the time of pleading the general issue; and be set off; or he may take a verdict for the as to the mode of setting off, see 1 Chit. on smaller sum, with a special indorsement on Pl. 4 ed. 494 to 497.

the postea, as a foundation for the court to orIn some cases, this plea or notice is unne der a stay of proceedings, if an action should cessary, as where the defendant's demand is be brought for the amount of the set-off. 1 more in the nature of a deduction than a set. Campb. 252. off. Thus a defendant is in all cases entitled The demand, as well of the plaintiff as of to retain or claim by way of deduction, all the defendant, must be a debt. A set-off is just allowances or demands accruing to him, not allowed in an action for uncertain damaor payments made by him, in respect of the ges, whether in assumpsit, covenant, or for a same transaction or account which forms the tort, trover, detinue, replevin, or trespass. ground of action, this is not a set-off, hut Bull. N. P. 181. 3 Campb. 329. 4 T. R. rather a deduction. See 1 Bla. Rep. 651. 4 512. 1 Bla. Rep. 394. 2 Bla. Rep 910. Burr. 2133. 2221. And where demands ori. The only cases in which a set-off is allowed, ginally cross, and not arising out of the same are in assumpsit, debt, and covenant for the transaction, have by subsequent express agree. non-payment of money, and for which an action ment been connected, and stipulated to be de- of debt or indebitatus might be sustained, 2 ducted or set off against each other, the ba- Bla. Rep. 911; or where a bond in a penalty lance is the debt, and the only sum recoverable is given for securing the payment of money on by suit without any special plea of set-off, an annuity, 2 Burr. 820; or at least stipulated though it is advisable in most cases, and ne- damages.2 T. R. 32. The demand to be set cessary when the action is on a specialty, to off, also, must not be for unliquidated damaplead it. 5 T. R. 135. 3T. R. 599. 3 Taunt. ges, although incurred by a penalty. I Bla. 76. 2 Taunt. 170. In actions at the suit of Rep. 394. 6 T. R. 488. i Taunt. 137. 2 assignees of bankrupts, a set-off need not be Burr. 1024. 2 Bla. Rep. 910. I Taunt. 137. pleaded or given notice of, 1 T. R. 115, 116. 5 B. & A. 92. 3 Campb. 329. Peake Rep. 41. 6 T. R. 58, 59; though the practice is so to 6 Taunt. 162. 1 Marsh. 514. S. C. 2 Brod. & plead, or give notice of such set-off. +

B. 89. 1 M. & S. 499. 5 M. & S. 539, &c. It may be important here also to observe, See cases in 1 Chit. on Pl. 4 ed. 486, 7. that these acts were passed more for the bene. Stark. on Evid. 1312. part 4. The defendant's fit of the defendants than the plaintiffs, and bringing an action, or obtaining a verdict for a are not imperative; so that a desendant may debt, is no waiver of the right to get off the have his right to set off, and bring a cross ac. debt. 2 Burr, 1229. 3 T. R. 186.

And a tion for the debt due to him from the plaintiff, judgment may be pleaded by way of set off, 2 Campb. 594. 5 Taunt. 148; though be can ihough a writ of error be depending upon it

, not safely arrest. 3 3 B. & Cres. 139. And 3 T. R. 188. in notes; but not so after plainwhere the defendant is not prepared at the tiff be taken in execution. 5 M. & S. 103. time the plaintiff sues him to prove the set. The debt to be set off must be a legal and suboff, it is best not to avail himself of it, for if sisling demand ; an equitable debt will not the desendant should attempt but not succeed suffice. See 16 East, 36. 136. 7 East, 173. on the trial in proving the set-off, he could not A demand, barred by the statute of limitations, afterwards sue for the amount; and a party cannot be set off. 2 Stra. 1271. Peake Rep. cannot bring an action for what he has suc- 121. Bull. N. P. 180. An attorney cannot ceeded in setting off in a former suit against set off his bill for business done in court, unhim ; though if the set-off were more than less he has previously, and in a reasonable sufficient to cover the plaintiff's demand in the time to be taxed, delivered a bill signed. I former action, the defendant therein might Esp. C. 449. But it is not necessary that a then maintain an action for the surplus. 3 month should intervene between the delivery Esp. Rep. 104. Though the defendant does of the bill and the trial. Id. not avail himself of the set-off, intending to • The debt sought to be recovered, and that bring a cross action, the plaintiff may defeat to be set off, must be mutual, and due the it by taking a verdict for the whole sum he same right; therefore a joint debt cannot be proves to be due to him, subject to be reduced set off against a separate demand, nor a sepa. to the sum really due on the balance of ac. rate debt against a joint one, 2 Taunt. 173. counts, if the defendant will afterwards enter Montague, 23. 5 M. & S. 439. unless it be

+ As to set-off in New York, see 2 R. S. 354, $ 18, &c.

(65) See Ilov. 11. (65) at the end of the Vol. B. UI.

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