dence under the general issue must contain as distinct an allegation of the grounds of the defence, as would be stated in a specific plea, though it need not have the technicality of a special plea." If this direction were adhered to, and the old books on pleading consulted, before drawing up such specifiations, as they should be for they are models of neatness and perspicuity there would be fewer motions made to suppress or amend them. Some specifications of defence, that I have seen, were amongst the most extraordinary productions of the human intellect. They went on to state, in voluminous detail, the evidence intended to be offered in defence. Others went to the opposite extreme, and filed the general issue, and then stated that they should prove in defence, "accord and satisfaction," "payment," "release," &c. &c., without specifying the time, place or other circumstance, that would apprise the party of the intended defence. All such specifications would be instantly suppressed on motion. Though special pleading is abolished, the duty of practising lawyers to draw the specifications, which stand in the place of special pleas, with neatness, precision and care, is not less imperative than before.1

1 A writer in the Law Reporter, (vol. 7, p. 3,) uses the following strong language: —

66

Nothing more can be needful to establish the fact of the decline of legal science among us, than the exhibition of a modern, loose, misshapen specification. The great beauty of this substitute for pleading is, that any body and every body can make one. There is no one too dull, and no one too ignorant, to make a specification of defence. But, like other things thus easily made, it is really good for nothing when made. It specifies everything in general and nothing in particular, so that, in truth, no one is any wiser for it. It amounts, in general, to saying that the plaintiff must prove his case, and that the defendant will set up in defence everything which can be previously thought of, or which may be suggested at the trial.”

For the sake of introducing some degree of uniformity in this branch of practice, a variety of specifications, drawn by eminent lawyers, are annexed to this work.

Where the specification set forth, that the defendant would rely upon performance of a condition, he was not allowed to prove an excuse for non-performance. Washburn v. Mosely, 22 Maine, 160.

CHAPTER XIX.

TENDER AND PAYING MONEY INTO COURT.

THERE are few subjects upon which young practitioners are liable to commit greater errors than this. It is often highly expedient to make a tender, both before and after action brought, and it can seldom fail to impress a jury favorably, if a defendant come forward, at the earliest moment and pay whatever he acknowledges to be justly due. When a tender has been determined on, it is sometimes made without sufficient care. Nothing would seem to be more easy than for one man to offer money to another, (except perhaps to take it); but it will be seen, from the cases hereafter cited, that it is a matter requiring more than common coolness and carefulness. It may be stated, as a most important general rule, for the guidance of all practitioners, that a tender should never be made verbally, unless it be absolutely necessary. The defendant's attorney should reduce the tender to writing, and either deliver or read it to the other party, in the presence of one or more witnesses, being careful to retain a copy. Notice should be given to produce such letter on the trial. 1 Chit. Gen. Prac. 507.

The first inquiry upon this subject is, what may be lawfully tendered. By the Constitution of the United States, exclusive power is given to Congress "to coin money, and regulate the value thereof and of foreign coin:" and the States are further expressly prohibited

from making anything, "but gold and silver coin a tender in payment of debts."

Whenever a tender is made, it is prudent to use the gold and silver coins of the United States. Foreign coins have been legalized, to some extent, by repeated acts of Congress, for certain periods of time; but it is believed that all the acts upon the subject have now expired, by their own limitation. By the English law, 56 Geo 3, c. 68, gold coin and foreign coin made current by proclamation are the only legal tender. Silver is a lawful tender to the amount of forty shillings, and copper to the amount of five pence and three farthings. A tender of bank notes is sufficient, unless objected to at the time on that account. Grigby v. Oakes, 2 B. & P. 526; Snow v. Perry, 9 Pick. 539; Bank of United States v. Bank of Georgia, 10 Wheat. R. 333.

One of the most interesting questions that has arisen, since the establishment of banks, is, when a payment has been made in current bank notes, the bank having previously failed, but the fact being unknown to either party, upon whom shall the loss fall? This question was distinctly presented to the Supreme Court, in Maine, and it was held that the payer must stand the loss. Frontier Bank v. Morse, 22 Maine Rep. A similar decision had been given in the case of Lightbody v. The Ontario Bank, 13 & 14 Wendell, in which the same doctrine was held both in the Supreme Court and the Court of Errors on appeal. On the contrary the case of Adams v. Young, 6 M. R. 182, is clearly the other way. And before the decision in Maine, it had been determined by C. J. Gibson, of Pennsylvania (who is the Lord Mansfield of America,) upon the soundest principles, that the loss should fall

upon the receiver. Bayard v. Shunk, 4 Law Rep. 214.

The case of Adams v. Young, is the first law question that appears to have been argued by the present Chief Justice of Massachusetts. In this conflict of great authorities, it may not become the author to express an opinion, but he ventures to say, that if bank bills be a legal tender, if not objected to, it is difficult to see why they are not legal payment if received. As a mere matter of fact, bank bills are currency more than coin. We must take the world as it is. The same bank bill may be, and often is, in twenty different hands in twelve hours, and to allow each party to come back on the other would give occasion for a new statute of frauds and perjuries. To trace bills is as difficult as it is to trace coin. A person receiving money may reject any bill he chooses to reject, without assigning any cause whatever. Why, when he receives them, does he not receive them like coin, at his own risk? These remarks will be understood, of course, as applying to the genuine notes of a bank, and not to counterfeit notes or counterfeit coin.

When a tender may be made. It may be made, on any contract for the payment of money, at any time after it has become due and payable, R. Stat. c. 100, §14. It may also be made after an action is brought, on any contract, with the costs up to that time, provided it be made four days, at least, before the return day of the writ, either to the plaintiff or his attorney. In this case, if the tender be accepted, the attorney is required to sign a certificate and deliver it to the officer, 17. The only case, in an action ex delicto, in which a tender can be made, is in an action of