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pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course; or special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever which are granted at the discretion of the court. (0)

1. Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea; or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, &c. 2. The disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a præmunire, not in rerum natura (being only a fictitious person), an infant, a feme-covert, or a monk professed. (12) 3. In abatement, which abatement is either [*302] 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. (13) Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of the suit. (14) And in actions merely personal,

(o) 12 Mod. 529.

(12) [As to this plea, see 1 Chit. on Pl. 387, 388. Whenever the subject-matter of the plea or defence is, that the plaintiff cannot maintain any action at any time, in respect of the supposed cause of action, it may, and usually should, be pleaded in bar; but matter which usually defeats the present proceeding, and does not show that the plaintiff is forever precluded, should in general be pleaded in abatement. 4 T. R. 227. Some matters may be pleaded either in abatement or bar; as outlawry for felony, alien enemy, or attainder, &c. Bac. Ab. Abatement, N.; Com. Dig. Abatement, K.

The defendant may also plead in abatement, his, or her, own personal disability; as in case of coverture, when the husband ought to have been joined. 3 T. R. 627; Bac. Ab. Abatement. G.]

(13) [Pleas in abatement to the writ, are so termed rather from their effects, than from their being strictly such pleas; for as oyer of the writ can no longer be craved, no objection can be taken by plea to matter which is merely contained in the writ. 3 B. and P. 399; 1 B. and P. 645. But if the mistake in the writ be carried also into the declaration, or rather if the declaration, which is presumed to correspond with the writ or bill, be incorrect in respect of some extrinsic matter, it is then open to the defendant to plead in abatement to the writ or bill: 1 B. and P. 648; and as to such pleas, see 1 Chit. on Pl. 390 to 394. Consequently, a misnomer of the defendant, or giving him a wrong addition, or other want of form in the writ, unless it be contained in the declaration, is not now pleadable in abatement. See 1 Saund. 318 n. 3; 3 B. and P. 395. And the defendant, to take advantage of any defect in the writ, should in general, before appearance, move to set it aside for irregularity. 1 B. and P. 647; 5 Moore, 168.

But now the writ itself may be amended; and further restrictions have by the common law procedure act, 1852, been imposed on pleas in abatement, in addition to those previously imposed by statute 3 and 4 Wm. IV, c. 42. By that statute (section 8), no plea in abatement for the nonjoinder of any person as a co-defendant shall be allowed unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with certainty in an affidavit verifying the plea. And by section 11 no plea in abatement for a misnomer shall be allowed in any personal action; but in all cases in which a misnomer would, but for that act, have been pleadable, the defendant may cause the declaration to be amended at the cost of the plaintiff, by inserting the right name upon a judge's summons founded on an affidavit of the right name. And by section 12, in all actions upon bills of exchange or promissory notes, or other written instruments, the parties to which are designated by the initials of some contraction of the Christian or first names, it is sufficient in every affidavit to hold to bail, and in the process or declaration to designate such persons by the saine initial letter or contraction of the Christian or first name.]

(14) [But now by the common law procedure act, 1852, an action shall no longer abate by the death of either party, but may be continued by the legal representative of a 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 representatives of defendant.]

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; (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. (15) 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: (q) 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 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


*All pleas to the jurisdiction conclude to the cognizance of the court: [*303 ] 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 "judg ment 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: (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 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 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 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, (f) but not the debt itself; though in some particular

(p) 4 Inst. 315.

(q) March. 14.

(r) Brownl. 139.

(s) Co. Entr. 271.

(t) 1 Ventr. 21.

(15) By statute 3 and 4 Wm. IV, c. 42, 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.]

cases the creditor will totally lose his money. (u) (16) *But frequently [*304] the defendant confesses one part of the complaint (by a cognovit actionem 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 liti

(u) Litt. 338. Co. Litt. 209.

(16) [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. 83; 1 Cromp. 152; 2 M. and 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; Bull. N. P. 157; 6 Esp. 46. If A says, 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 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 and 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. 237; 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. and R. 305. A tender of 201. in bank notes, with a request to pay the difference over fifteen guineas, is not a good tender as to the fifteen guineas, though it would have been otherwise if the tender had been in guineas. 3 Campb. 70; 1 id. 181; 6 Taunt. 336. But a tender of a larger sum generally is good. 5 Rep. 114; 8 T. R. 683; sed vid. 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. 336; Peake C. N. P. 88; 2 Esp. c. 711; 3 Campb. 70; and see 1 Gow. C. N. P. 121. A 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. 91. So is a tender accompanied with the demand of a receipt in full: 5 Esp. Rep. 48; 2 Campb. 21; sed vid. 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 Campb. 156; or that a particular document shall be given up to be cancelled. 2 Campb. 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. 1 Stra. 504.

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. 1 Moore, 200. party, being an agent of the debtor, may tender the money. 2 M. and 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 Campb. 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. A 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.

2. 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. and P. 234;

gate. 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 of the court as much as the defendant acknowledges to be due, together with the costs

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

3 id. 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. 909; 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. and P. 234; or for not delivering goods at a certain price per ton: 3 B. and 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 201. would, it seems, be available. 1 H. Bla. 299. So a tender may be made with effect to a demand, for navigation: 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 Burr. 1370. So the penalty of a bond may with effect be tendered. 2 Bla. 1190. So the arrears of a bond for 401., 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 51. per acre for ploughing meadow grounds. 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, § 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. 2T. 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. Also by the 21 Jac. I, c. 16, § 5, in case of involuntary trespasses, tender of amends may be made.

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 afterward 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 afterward. See Salk. 622; 8 East, 163; 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. 2 Campb. 269; 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 id. 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: 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. and 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. and 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. Dougl. 443.

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 Campb. 181; 5 B. and A. 630. A subsequent demand of a larger sum will not suffice: id.; or 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 à discharge. 1 Campb. 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 Campb. 478. A subsequent application to one of two joint debtors, and a refusal, is sufficient. 1 Stark. 323; 4 Esp. 93; Noy, 135; Vin. Ab. 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. East, 168; 1 Saund. 33, n. 2; Bull. N. P. 156; 1 Campb. 478.]

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 cffido), 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. (17) 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. (18) 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 in 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. (19)

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(17) 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 Vie. 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.

(18) [The effect of the payment of money into court is nearly similar to that of a tender. 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. and P. 392.]

(19) [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 Chit. 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 saine 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 id. 599; 3 Taunt. 76; 2 id. 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 id. 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. and Cres. 139. And where the defendant is not prepared at the time the plaintiff sues him to prove the set-off, it is best not to avail himself of it, for if the defendant should attempt but not succeed on the tria! in proving the set-off, he could not afterwards sue for the amount; and a party cannot bring an action for what he has succeeded in setting off in a former suit against him; though if the set-off were more than sufficient to cover the plaintiff's demand in the foriner action, the

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