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CH. 177. so, may tenant at will, or for years : so, may a bailiff or séra Art. 4. vant, deft., have aid of his master, if his title come in ques.

tion : so, if the remainder be to A, for life, or in tail, remainder to B, in fee, the tenant for life or years, shall have aid of both; for both remainders begin together, and depend on one estate ; but if the remainder in fee or in tail, be to the lessee, he shall not have aid of himself, but of the other remainders only: so, one parcener of another, if they claim by descent, and this after partition in law, or by construction, as well as on partition in deed; otherwise, one cannot have in value pro rata, if he loses in the action ; and if the deft. have aid of one, and he dies, he shall have aid of his heir. If lessee for life, or years, pray aid, the lessor may

join without process. Rast. 27, a.

§ 4. Counter plea. In praying aid, there is the plea, in which the plt. says, the deft. aid of the said A, ought not to have; because the said A did not demise to the deft., the tenements &c., as he alleges; and this he prays &c. In 2 Leo. 52, it is said, that if this plea be found for the plt., he has final judgment. Perhaps on the ground, aid prayer is a dilatory plea; and when the issue is tried by jury, the judgment is final, on the principles before stated; the delay

and trouble of a trial in abatement. Rast. En. 27. § 5. So, tenant for life prayed aid of him in remainder, 2 Bos. & P. and the plt. counterpleaded, and said the deft. ought not to Saund. 45, c. pray aid of him, because he had nothing in the remainder ; d, Williams' the deft. rejoined, and said, he held the lands for his life, the Notes.

remainder thereof, after his death to the said and his heirs &c.; hoc ponit &c.

ART. 4. Parol demurrer. 3 Bi. Com.

§ 1. This may be by the rules of law in many real ac300.- 6 Co. 4.-It was

tions, brought by or against a minor, under twenty-one unknown to years of age; eitħer party may suggest the nonage of the inthe civillaw: fant, and pray the proceedings may be stayed, or deferred

Not allow. until he be of full' age. This plea is but little used in the ed ginia. United States, as the courts usually appoint some person to

assist the minor in pleading and in managing his action, and delay is often prejudicial to him. This branch in pleadings has been already in part considered, in Ch. 124, a. 3, in connexion with voucher and counter-pleas thereto, and but

little need be added here. 3 P. W. 365, § 2. If lands in fee descend on an infant, the parol shall Chaplin v. Chaplin.

demur in equity, as well as in law; but where a lease is made to a man and his heirs during three lives, the heir does

not take by descent, but as special occupant; and the parol St. West. I, shall not demur; nor shall it in a writ of entry sur disseizin 14.-2 Ins.

by the heir of the disseizee.

258.

1 Com. D.

328.-2 Inst. 257.

230.

$ 3. But if an infant have the reversion, he shall have Ch. 177. his

age, if prayed in aid, by tenant for life ; but not if sued in Art. 6. an action for his own wrong; nor in estrepment for waste; for it is in nature of trespass ; nor in a writ of entry sur disseizin, against the heir of the disseizor.

584.---Co. L. § 4. Non sum informatus. The deft's. attorney pleads, in 380:- Inst. some cases, that he is not informed by the deft. of

any answer for him in the complaint &c. to be given. This plea 3 Inst. CI. is very rarely, if ever, put in practice.

Art. 5. Cognizance claimed. This is where a certain 3 Bl. Com. court has cognizance of a matter, and the same is drawn in- 300, 301. to another court. The judge of such certain court may put in such claim of cognizance; and it must be claimed before any imparlance; for that is a submission to the jurisdiction of the court in which the suit is brought. This article is of considerable importance in England, where there are many çourts claiming the cognizance, and often profitable cognizance of causes, under different ancient establishments; but in the United States, in which the courts are generally modern establishments, under the legislatures, and the distinctions of jurisdictions are well understood, and usually, a court derives no emolument by claiming cognizance of causes, but very few claims of this sort have ever existed; nor is it recollected, that it has been the practice of any court in the United States, having the proper cognizance of a cause, to claim it of its own accord; but when a suit, or process has been brought in a court not having the proper jurisdiction of it, the practice has been for the party thinking so, and objecting, to plead to the jurisdiction, in the manner already stated; and to remove the cause in this manner; that is, by defeating the action and driving the plt. into the proper court, or by removing the action by plea or petition, as is provided for by several statutes.

ART. 6. Tender and bringing money into court.

§ 1. This is a very important branch in pleadings, and involves in it many nice distinctions; but need not here be pursued much further, as it has already been largely considered, in Ch. 144, in its natural connexion with pleas of performance, or of tender of performance; but more especially in Ch. 170, a. 1, to 15, in its natural connexion with pleadings in the action of debt; only a few cases willl be added in this article, found or decided since Ch. 170 was written mainly

§ 2. When a tender is pleaded, the money must be paid 1 Stra. 638, into court, or the plt. may sign judgment; but this must be understood to be the rule in cases in which the tender does

Pether r.
Shelton.

Jenkins v.

8 Johns. R.

101.--5

CH. 177. not discharge the debt or duty; as when that is discharged Art. 6. there is an end of the case.

§ 3. In debt on a bond, the deft. cannot plead non est 6 D. & E.97, factum, and a tender as to part, where there is but one en

tire contract; for tender implies there was a contract. Edward.

§ 4. In debt on a bond with a penalty, a tender is no bar to the action ; but quære if according to the condition. 2 Johns. R. 24, Manney v. Harris.

§ 5. A, distrained B’s horses and household goods, for 474, Slinger- rent.

C promised to deliver the goods to A, in six days, or land v. Morse, (Root, pay $450, and the goods were left in C's possession. 'A, 448,) the demanded the goods within the six days, but did not appoint

3 0.82 €.693. any place at which they were to be delivered; and imme-10 East,

diately after, and within the six days, went with C to B's

house, where the goods were, and Cihen tendered the goods Tyng, 67.Cro. El. 48,

to A; he said he was not ready to receive them; but ifC &c –Co. Ľ. would carry them to D, A would receive them ; but C refus257, a -9 ed to do this. A brought assumpsit against C. Held, that Co. 79, a.

A's reply to C's offer to deliver the goods to A, at B’s house, dispensed with any further tender or delivery on C's part; especially as the articles were bulky and numerous. A must resort to C, as his bailee of the goods. A acquired a

property by distraining, 20 Ed. IV. 1. § 6. There is a difference in regard to tender, between

things portable and things ponderous. If no place be appointed for performance or payment, a tender is good to the person that is to receive; and it is a good bar to an action on the contract; and the plt. must resort to the person possessing the goods, who will be viewed as holding them as the ple's. bailee, and at his risk. The delivery was collateral to the obligation.

§ 7. The deft. gave his promissory note to the plt. paya119, Newton ble in produce, to be delivered at the desi’s. house on a day

named. In assumpsit on this note, the deft. pleaded payment; and proved he, on the day, had hay in his barn, ready to be delivered to the plt.; but did not shew the quantity or value. Held, not to be evidence of a tender or

payment. See Ch. 170, § 8. The Pennsylvania act of January 29, 1777, declared a. 14, s. 10.

that a tender &c.; but a tender of bills emitted after January 29, 1777, had only the effect of a tender at common law; that is, only to suspend the interest after the ten

der and refusal. 2 Dall. 190, § 9. In legal strictness, a mere offer to pay is no tender, Sheredine v.

nor is the deft. entitled to avail himself of a tender, unless Qaul.

he pleads it, and brings the money into court.

5 Johns. R

.

1. Francis.

§ 10. The deft. gave a bond for £40, payable by £5 a Ch. 177. year ; allowed to bring money into court in an action upon it; Art. 6. 2 Stra. 814, Bridges v. Williamson.

$ 11. In a declaration, containing a count on a policy of 3 Bos. & P. insurance, also the money counts, the deft. paid money

556, Muller

v.Hartshorn; into court, generally, on it. The plt., by his conduct, before cited 1 Phil. the trial, induced the deft. to believe the only point to be Evid. 150. tried, was a question of fraud, and the deft. prepared accordingly his evidence; and the court would not allow him to object to the receipt of that evidence at the trial, on the ground the deft. had admitted the contract, by paying money into court: this shews how material it is to conduct fairly.

§ 12. If the declaration be on contract, and money is paid 2 Bos. & P. into court, it is an admission of it in every transaction, which 550, Bennett is capable of being turned into a contract by the assent of the parties. Hence, where a deft. possessed himself of the plt's. goods, and sold a part, and kept the rest in specie, paid money into court generally, on a declaration, containing a count for goods sold and delivered: held, the deft. admitted the transaction to have been converted into a contract; and that the plt. was entitled to recover the value of all the goods, on this count, for goods sold and delivered. The money was paid in, as well on that count as the others, and so on the general principle, admitted the contract laid in it; and see s. 13, and i Phil. Evid. 150.

§ 13. Paying money into court on a count, on a special 2 East, 128, contract, admits it, and the inquiry is limited to the amount Yates v. Wilof damages sustained by the breach of it. Hence, if the 2640.–2 D. plt. declare, as on the deft's. general undertaking to carry & E. 275.-1 goods for hire, on which he pays £5 into court, he cannot D. & E. 464. be admitted to prove the contract was, that he should not be liable for goods lost to a greater value than £5, unless en- N. P. 134, tered and paid for accordingly; yet, if no money had been 557. paid into court, the plt., on such evidence, must have been nonsuited. Peake's L. E. 202, 203 ; see Ch. 175, art. 6, sect. 33, 34.

§ 14. If money be paid into court, it only admits a legal 1 Bos. & P. demand, if one in the declaration to which it may apply, 264, Ribbans though there be an illegal one also. In such case, money so 2 H. Bl. 374. paid into court, cannot be applied to an illegal account, as -2 East, 134. on such account no payment is intended.

§ 15. The court gave leave to withdraw the general issue, 2 Stra. 1271, in order to bring money into court, and then to replead the Tarlton v. same issue: this, for the promotion of justice, is within the Wragg. general discretion of the court, and is our practice.

2

-4 D. & E. 579.-1 Cam.

VOL. VI.

Ch. 177. $ 16. An action was brought against three defts.; one was Art. 7. outlawed, judgment against another by default, and the court

refused to allow the third to pay money into court; 2 W.

Bl. 1029, Kaye v. Panchiman. 1 H. Bl. 299, § 17. In an action against a carrier, who had given notice Hutton & al. he would not be liable beyond £20, but on certain condiv. Bolton.

tions; he was allowed to pay £20 into court. 1 H. Bl. 24, § 18. Plt. in replevin was allowed to pay into court the Vernon v. rent for which the deft. avowed. Wynne.

§ 19. And if an executor sue, money may be brought into 2 Stra. 796, Crutchfield

cour:. v. Scott.

§ 20. If the court has reason to believe a qui tam action 3 D. & E. is prosecuted, merely for the issue money ; on motion, the 137, Parker court will allow it to be paid into court by the deft., to abide 9. t. v. Mac- the event of the suit. farlan. 2D.& E.645,

$ 21. If a party pay money into court by mistake, he is Malcolm v.

bound but in one case, and that is, where it is paid in by Fullerton. rule of court. 2 Bos. & P. § 22. And if the deft. pay money into court by mistake, 392, Vaugh- the court will not order it restored to him, except, perhaps, an v. Barnes. in cases of fraud. 1 Johns. R. § 23. After the deft. pleaded, the court granted him leave 149, Dunlap to pay money into court, paying costs to the time, but not v. Com Company.

specifically, as a premium on a policy of insurance, on which

the action was brought. 7 Johns. R. $ 24. Held, that payment of money into court admits the 315, Johns

cause of action, as it is stated in the plt's. declaration. This ton ,Colum. is the general principle now clearly settled in many cases : --1 Taun. R. The true inference, for when the deft. pays money into court 419. on the plt's. declaration, he admits he owes the plt. money

on the ground of it; and if that be contract, he admits all the fair construction of it; or if tort, he admits the tort in

substance, as charged in the declaration. Bringing money 1 Phil. Evid. into court admits the plt's. character in which he sues; also 150. admits the action is in the proper court; cites 5 Esp. N. P.,

Miller v. Williams. 1 Phil. Evid. § 25. After paying money into court, the deft. may avail

himself of his infancy.

§ 26. In case, on a policy, deft. pays premium into court, 192, 204, the plt. takes out the money, informing he means to go for Rhinelander a total loss. Held, he may do it. Paying money into court & al.-2 must be proved by producing the rule of court.

Art. 1. Protestandoes. $1. These are often used in vari

ous parts of pleadings, and are often used with but very little 311.-5 Com. precision ; the general use is to prevent duplicity in pleadSaund. 103. ing, and especially to prevent a conclusion being made -3 løs. Cl. 307, 350.—Plow. 276.-1 Inst. Cl. 124.

152.

Johns. R.

Taun. 267.

3 BI. Com.

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