[*302] professed. 3. In abatement, which abatement is either of the *writ or the count, for some defect in one of them; as by misnaming the defendant, which is called a misnomer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto (from wrong done), for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona (a personal action dies with the person); (p) 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 (from contract), 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: (q) being indeed rather actions against the property than the person, in which In dilatory pleas the greatest precision and certainty are required. They are not favored, and the least defect is fatal. Gould, Pleading, ch. V, sec. 66. Abatement of a writ or plaint is when for any default the defendant prays that the writ or plaint do abate, that is, cease against him for that time. Com. Dig., Abatement, B. The plea in abatement should tend to show not that the plaintiff can never maintain any action, but that he can not maintain that particular action; it should give the plaintiff a better writ. Elam v. Stevens, 4 T. R. 224; Steel v. Farrel, 14 S. and R. 379; Steph. Pl. 49. As to what matters may be pleaded either in bar or abatement, see Bac. Abr. Abatement, N. Beside the pleas to inability mentioned in the text, the defendant, if a married woman, may plead her covert ure in abatement if sued alone when the husband should be joined; namely, for a liability on contract accruing before coverture, or for a tort committed before or after marriage. 1 Chit. Pl. 449. If the liability on contract accrued after marriage, the coverture must be pleaded in bar. Steel v. Farrel, 14 S. and R. 379. But the marriage of a feme sole pending suit against her cannot be pleaded. Crockett v. Ross, 5 Me. 443. 2 Pleas in abatement of the writ are now obsolete in the English practice. By the procedure act of 1852 the legal representative of the deceased party may continue the suit after sug gesting the death of record; so may a surviving plaintiff in a proper case. The pendency of another action may be cause for the abatement of a suit. The action must have been previously commenced and be still pending between the same parties for the same cause of action. Buffum v. Tilton, 17 Pick. 510; Humphries v. Dawson, 38 Ala. 199; Prosser v. Chapman, 29 Conn. 515; Adams v. Gardiner, 13 B. Monr. 197. The proceedings must be substantially identical. A suit in personam at common law will not be abated by the pendency of a prior suit in rem in admiralty. Granger v. Circuit Judge, 27 Mich. 406. The first action must be in a court of competent jurisdiction: Rood v. Eslava, 17 Ala. 430; and must be capable of an effectual result. Quinebaug Bank v. Tarbox, 20 Conn. 510. If the cause is pending in a foreign country or another state, the second suit will not be abated. Humphries v. Dawson, 38 Ala. 199; Long v. Marsh, 2 Cliff. 311. See Earl v. Raymond, 4 McLean, 233. 4 By statute 3 and 4 Wm. IV, this has been changed, so that under certain circumstances the executor or administrator of a deceased person may, within a given time after the death, bring an action for trespass to the real property of the deceased, and a like action may be maintained against such representative for trespass committed by the deceased within a limited time before his death. the executors have now the same interest that their testator had before. 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 and 5 Ann. 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. 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; (r) that is, show him how it might be amended, that there may not be two objections upon the same account. Neither, by statute 8 and 9 Wm. 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. Conclusion of pleas to the jurisdiction.-*All pleas to the [*303] jurisdiction conclude to the cognizance of the 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. Effect of plea.- 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: (s) 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. Pleas to the merits.-2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.1 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. Tender. 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 is still ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor, will in all cases discharge the costs (t) but not the debt itself; though in some particular cases the creditor will totally lose his money. (u) *But frequently (r) Brownl. 139. (8) Co. Entr. 271. 1[Pleas to the merits are now classed as pleas in confession and avoidance and plea in bar of the action.] 2 (t) 1 Ventr. 21. [*304] (u) Litt. § 338. Co. Litt. 209. 2 A tender may be made in all cases where the demand is in the nature of a debt, where the sum due is either cer the defendant confesses one part of the complaint (by a cognovit actionem (he hath acknowledged the action) in respect 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. tain or is capable of being made certain by mere computation; but is not allowed where the action is for unliquidated damages, the amount of which is to be determined by the discretion of a jury: Green v. Shurtliff, 19 Vt. 592; Dearle v. Barrett, 2 A. and E. 82; though it seems by the latter case that a tender is allowed to be pleaded to a count on a quantum meruit. * * "In actions of debt or assumpsit, the principle of the plea of tender* * is that the defendant has been always ready (toujours prist) to perform entirely the contract on which the action is founded, and that he did perform it as far as he was able by tendering the requisite money, and the plaintiff himself precluded a complete performance by refusing to receive it," * * "As in ordinary cases the debt is not discharged by tender and refusal, the plea must not only go on to allege that the defendant is still ready (uncore prist), but must be accompanied by a profert in curia of the money tendered. If the defendant can maintain this plea, although he will not thereby bar the debt, for that would be inconsistent with the uncore prist and profert in curia, yet he will answer the action in the sense that he will recover judgment for his costs of defense against the plaintiff." Dixon v. Clark, 5 C. B. 363. The plea of tender admits the cause of action: Bennett v. Francis, 2 B. and P. 550; Cox v. Brain, 3 Taunt. 95; but if the tender is proved, and the money is brought into court, it stops interest on the amount due, and the plaintiff loses costs. Cornell v. Green, 10 S. and R. 14; Hunter v. Le Conte, 6 Cow. 728; Raymond v. Bearnard, 12 Johns. 274. A tender does not extinguish the debt, but bars the claim to damages, interest and costs. Curtiss v. Greenbanks, 24 Vt. 536; which see for the rule as to the effect of a tender of chattels. An absolute tender and refusal will operate to discharge a mortgage lien, though not to cancel the debt; and this, too, though the tender be not kept good: Potts v. Plaisted, 30 Mich. 149; Kortright v. Cady, 21 N. Y. 343; Sager v. Tupper, 35 Mich. 134; but if the refusal be not absolute nor unreasonable under the circumstances, the lien will not be discharged. Waldron v. Murphy, 40 Mich. 668. But, besides the averment of readi ness to perform, the plea should aver an actual performance of the entire contract on the part of the defendant as far as the plaintiff would allow. If the money is to be paid on a future day certain, the plea must allege a tender on the very day. A plea defective in this respect cannot be remedied by resorting to the previous averment of toujours prist, and the plea by the maker of a note of a tender after the day the note falls due is bad, though it be made before action and includes interest up to the date of the tender. Dixon v. Clark, 5 C. B. 363. That the tender must be made on the exact day when the debt falls due, and that, at common law, tender after that day and before action is bad, see also Hume v. Peploe, 8 East, 168; Poole v. Turnbridge, 2 M. and W. 223; Dewey v. Humphrey, 5 Pick. 187; City Bank v. Cutter, 3 Pick. 414. The tender may be made up to the uttermost convenient time of the proper day. As to what is a reasonable time of the day for this purpose, see Startup v. McDonald, 6 M. and G. 593. Unless some place is fixed by the contract for the payment of the debt, the debtor must seek his creditor wherever he may be within the state, in order to make a tender. King v. Finch, 60 Ind. 420; Luttell v. Nichols, Hardin, 66. A tender may be made by an agent: Read v. Goldring, 2 M. and S. 86; not by a stranger-one who has no authority or interest in the matter. Mahler v. Newbaur, 32 Cal. 168. Tender may be made to an authorized agent of the creditor, as well as to the creditor in person, not to a mere servant. Kirton v. Braithwaite, 1 M. and W. 310; King v. Finch, CO Ind. 420; Thurber v. Jewett, 3 Mich. 295. Where several persons have a joint demand against a debtor, he may, by offering the money to one of them, make a good tender to all. Douglass v. Patrick, 3 T. R. 683; Beebe v. Knapp, 28 Mich. 53. The whole amount due must be tendered: Read v. Goldring, 2 M. and S. 86; at the peril of the person tendering. Boyden v. Moore, 5 Mass. 365. Tender of less than the amount due, though made in good faith and under misapprehension of the amount due, is not sufficient. Helphrey v. Railroad Co., 29 Iowa, 480. The plea of tender must allege the tender of the whole sum due on the contract, for a tender Paying money into court.-A species of this sort of confession is the payment of money into court: (v) which 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 (v) Styl. Pract. Reg. (edit. 1657) 201. 2 Keb. 555. Salk. 596. of a part of it only is no averment that A tender must in general be unconthe defendant performed the whole ditional. Cothran v. Scanlon, 34 Ga. contract as far as the plaintiff would 555. At any rate the condition must allow. Dixon v. Clark, 5 C. B. 363. A not be one on which the debtor has no man may tender too much, though a right to insist. Bevans v. Rees, 5 M. tender of too little is bad. Astley v. and W. 306; Brink v. Freoff, 40 Mich. Reynolds, 2 Stra. 916. If one tenders 610. It is not in the nature of a tender more than the amount he admits to be to make conditions, terms or qualificadue, and the creditor does not object tions, but simply to pay the sum tenon the ground that he has no change, dered as an admitted debt. Hence a but because the amount is too small, demand of a receipt in full on a tender or some other collateral reason, it is a vitiates the tender. Wood v. Hitchgood tender. Cadman v. Lubbock, 5 D. cock, 20 Wend. 47; Glasscott v. Day, 5 and R. 289; Patterson v. Cox, 25 Ind. Esp. 48; Thayer v. Brackett, 12 Mass. 261. But if a larger sum than is ad- 450. So an offer to pay by a mortgagor mitted to be due is tendered and conditioned upon the execution of a change demanded, it is not a good ten- release, which the creditor was under der if objected to, because of the need no legal obligation to execute, is not a of making change. Robinson v. Cooke, good tender. Loring v. Cooke, 3 Pick. 6 Taunt. 336. 48. But if the condition be one on which, by the terms of the contract, the debtor has a right to insist, and to which the creditor has no right to object, insisting upon the performance of such a condition does not vitiate the tender. Wheelock v. Tanner, 39 N. Y. 481. A tender upon condition that negotiable commercial paper shall be given up is good, "because such paper might be put in circulation after payment and innocent parties become liable; not so, however, with non-commercial paper; after payment by the maker it becomes harmless as against him wherever it may go." Story v. Krewson, 55 Ind. 397. One may make a tender and add that it is done under protest. This creates no condition and avoids admitting the justice of the claim. Scott v. Ry. Co., L. R. 1 C. P. 596. There must be an actual offer of the money or a dispensation of the offer by the creditor. If the debtor has it ready and offers to pay it, and the creditor dispense with the production of it or do anything which is equivalent to it, it is a good tender. Thomas v. Evans, 10 East, 101; Brown v. Gilmore, 8 Me. 107. It ought to appear that the money is at hand and is capable of immediate delivery. Glasscott v. Day, 5 Esp. 48; Breed v. Hurd, 6 Pick. 356. The production of the money and actual offer of it to the creditor is dispensed with, if the party is ready and willing to pay it and is about to produce it, but is prevented from so doing by a declaration on the part of the creditor that he will not or cannot receive it. Hazard v. Loring, 10 Cush. 267. Tender is a production and manual offer of the money, and requires that it should be counted down. Held, that it was no tender when a person had money in his pocket and said it was ready, unless the creditor dispensed with its production. Bakeman v. Pooler, 15 Wend. 637. The money must be lawful money of the place where it is tendered. Wade's Case, 5 Rep. 114: Bank v. Howard, 13 Mass. 235; Waldron v. Murphy, 40 Mich. 668. But a tender in money which is not a legal tender is good if the creditor places his refusal to receive the money on other grounds, or makes no objection on that express ground. Curtiss v. Greenbanks, 24 Vt. 536. And see Beebe v. Knapp, 28 Mich. 53. A tender must be kept good, that is, the person tendering must be ready at all times to pay the debt in current money when requested. Curtiss v. Greenbanks, 24 Vt. 536. The tender should be followed by bringing the money into court. Clark v. Mullenix, 11 Ind. 532; Webster v. Pierce, 35 Ill. 158. "With respect to the averment of toujours prist, if the plaintiff can falsify it, he avoids the plea altogether. Therefore, if he can show that an entire performance of the contract was demanded and refused at any time when by the terms of it he had a right to make such a demand, he will avoid the plea." Dixon v. Clark, 5 C. B. 365. 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.I 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 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. 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) - Set-off. 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 [*305] such set-off, must pay the remaining balance into court. This answers *very nearly to the compensatio or stoppage, of the civil law, (x) 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.3 1 By the common law procedure act of 1852, the defendant in any action, except for assault, battery, false imprisonment, libel, slander, malicious arrest, malicious prosecution, or debauching the plaintiff's daughter or servant, may pay into court. by leave of the court or a judge, a sum of money by way of compensation. The statutes 9 and 10 Vic. c. 93, and 27 and 28 Vic. c. 95, extend the right to actions for compensation to the family of a person killed by accident, and under statute 6 and 7 Vic. c. 96, a plea of apology and payment into court is allowed in certain actions for libel. plaintiff's demand struck out of the declaration; and if the plaintiff does not accept the money, he proceeds at his peril. Hallet v. East India Co., 2 Burr. 1120. The plaintiff may in any event have the amount which is paid in, as the defendant acknowledges that so much is due. Elliot v. Callon, 2 Salk. 597. The defendant is bound by the payment, and though demanded wrong. fully, he cannot recover it back. Vaughan v. Barnes, 2 B. & P. 392; Malcolm v. Fullarton, 2 T. R. 645. To be the subject of set-off, the claims must be mutual debts for the recovery of which indebitatus assumpsit or debt would lie. Howlet v. Strickland, Cowp. 56; Austin v. Feland, 8 Mo. 309; Jones v. Blair, 57 Ala. 457. A setoff is allowed only when the suit is 2 Money may be paid into court in cases where a tender might have been effectually made, and thereupon the defendant may have so much of the |