religion, in obedience to that precept of the gospel, "agree with thine adversary quickly, whilst thou art in the way with him." (g) And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the prætor,-in via, rem uti pacunt orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer (h) of the writ, or of the bond, or other specialty upon which the action is brought: that is, to hear it read to him; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves, whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff's declaration. (10) *In real [*300] actions also the tenant may pray in aid, or call for assistance of another, to help him to plead, because of the feebleness or imbecility of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary: that is, that they shall be joined in the action, and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries (2) which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the voucher: but, if he afterward makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value against the deficient vouchee. In assizes, indeed, where the principal question is, whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartæ against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenant. (5) In many real actions also, (k) brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in our legal phrase) that the infant may have his age, and that the parol may demur, (11) that is, that the pleadings may be stayed: and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. (1) But, by the statutes of Westm. 1, 3 Edw. I, c. 46, and of Gloucester, 6 Edw. I, c. 2, in writs of entry sur disseisin in some particular cases, and in actions

auncestral brought by an infant, the parol shall not demur: otherwise [*301]

he might be deforced of his whole property, and even want of maintenance till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a present subsistence. (m) Nor shall an infant patron have it in a quare impedit, (n) since the law holds it necessary and expedient that the church be immediately filled.

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action. Dilatory Matt. v. 25. (h) Appendix, No. III, § 6. (i) Book II, Appendix, No. V, § 2. (J) F. N. B. 185. Dyer, 137. (1) Finch, L. 360. (m) 1 Roll. Abr. 137. (n) Ibid. 138.

See note 2 supra.

(10) Oyer of the original writ cannot now be had. As to the practice on demand of oyer where allowed, see 1 Tidd Pr., 586; 1 Chitty Pl., 429, and notes. (11) But now the parol may not demur in actions, suits or other proceedings against infants.

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 [*302] 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. (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, 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

(12) 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 coverture 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, (13) Pleas in abatement of the writ are now obsolete in the English practice. (14) By the procedure act of 1852 the legal representative of the deceased party may continue the suit after suggesting 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 fire 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.

(15) 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.

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 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 "judg ment, 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: (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.

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 judg ment 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 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 () but not the debt itself; though in some particular cases the creditor will totally lose his money. (u) (16) *But frequently the defendant confesses one part of the complaint (by a cognovit actio[*304]

(r) Brownl. 139.

(9) March. 14.
(u) Litt. § 338. Co. Litt. 209

(8) Co. Entr. 271.

(t) 1 Ventr. 21.

(16) A tender may be made in all cases where the demand is in the nature of a debt, where the sum due is either certain 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, VOL. II.-22 169

nem 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. 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 hitherto incurred, in order to prevent the expense of any farther

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

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 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 readiness 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 a 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 strangerone 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, 60 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. Douglas 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 of a part of it only is no averment that the defendant performed the whole contract as far as the plaintiff would allow. Dixon v. Clark, 5 C. B., 363. A man may tender too much, though a tender of too little is bad. Astley v. Reynolds, 2 Stra., 916. If one tenders more than the amount he admits to be due, and the creditor does not object on the ground that he has no change, but because the amount is too small, or some other collateral reason, it is a good tender. Cadman v. Lubbock, 5 D. and R., 289; Patterson v. Cox, 25 Ind., 261. But if a larger sum than is admitted to be due is tendered and change demanded, it is not a good tender if objected to, because of the need of making change. Robinson v. Cooke, 6 Taunt., 336.

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

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. (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

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 ▼. Greenbanks, 24 Vt., 536. And see Beebe v. Knapp, 28 Mich., 53.

A tender must in general be unconditional. Cothran v. Scanlon, 34 Ga., 555. At any rate the condition must not be one on which the debtor has no right to insist. Bevans v. Rees, 5 M. and W., 306; Brink v. Freoff, 40 Mich., 610. It is not in the nature of a tender to make conditions, terms or qualifications, but simply to pay the sum tendered as an admitted debt. Hence a demand of a receipt in full on a tender vitiates the tender. Wood v. Hitchcock, 20 Wend., 47; Glasscott v. Day, 5 Esp., 48; Thayer v. Brackett, 12 Mass., 450. So an offer to pay by a mortgagor conditioned upon the execution of a release, which the creditor was under no legal obligation to execute, is not a good tender. Loring v. Cooke, 3 Pick., 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, 89 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.

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.

(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 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.

(18) 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 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 wrongfully, he cannot recover it back. Vaughan v. Barnes, 2 B. and P., 392; Malcolm v. Fullarton, 2 T. R., 645.