firmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts (a). It must be demanded before full defence is made (b) or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise: and it will not be allowed, if it occasions a failure of justice (c), or if an action be brought against the person himself, who claims the franchise, unless he hath also a power in such case of making another judge (d) (11).

[*299] *After defence made, the defendant must put in his plea. But, before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlance (e), or licentia loquendi; and may, before he pleads, have more time granted by consent of the court; to see if he can end the matter amicably without farther suit, by talking with the plaintiff: a practice, which is (ƒ) supposed to have arisen from a principle of 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 praetor,-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 (12), or of the bond (12), 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 [*300] plaintiff's declaration (12). *In real actions also the tenant may

(a) Hardr. 505.

(b) Rast. 128, &c. 1 Chitty on Pl. 364.
(c) 2 Ventr. 363.

(d) Hob. 87. Year-book, M. 8 Hen. VI. 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself; which was disallowed, because he should not be judge in his own cause. The argument used by serjeant Rolfe, on behalf of the cognizance, is curious and worth transcribing.-Jeo vous dirai un fable. En ascun temps fuit un pape, et avoit fait un grand offence, et le cardinais vindrent a luy et

(11) But a party may waive, and preclude himself from taking, any objection to a decision on this account; for if a defendant agree to refer the matter to the plaintiff, he cannot object to the award that the plaintiff was a Fudge in his own cause. Thus in Matthew v. Ollerton, 4 Mod. 226. Comb. 218. Hard. 44. which was an action of debt upon an award, and a verdict for the plaintiff; and, upon its being moved in arrest of judgment, the exception taken was, that the matter in difference was referred to the plaintiff himself, who made an award. Sed non allocatur. And the case of serjeant Hards was remembered by Dolben, ustice, viz. The serjeant took a horse from mv inrd of Canterbury's bailiff, for a deodand,

い

disoyent a luy "peccasti :" et il dit, “judica me :" et ils disoyent, "non possumus, quia caput es ecclesiae: judica teipsum:" et l'apostol dit, “judico me cremari" ei fuit combustus; et apres fuit un sainct. Et in ceo cas il fuit son juge demene, et issint n'est pas inconvenient que un home soit suge demene.

(e) Append. No. III. 6.

(f) Gilb. Hist. Com. Pl. 35.
(g) Matt. v. 25.

(h) Append. No. III. 6.

and the archbishop brought his action: and it coming to a trial at the assizes in Kent, the serjeant, by rule of court, referred it to the archbishop, to set the price of the horse, which was done accordingly; and the serjeant afterwards moved the court to set aside the award for the reason now offered, but it was denied by lord Hale and per totam curiam.

(12) But now a defendant is not allowed oyer of the writ. 1 B. & P. 646. 3 B. & P. 395. 7 East, 383. As to the demand ard giving of oyer, and the manner of setting out deeds, &c. therein, see 1 Saund. 9. (1). 289 (2). 2 Saund. 9. (12, 13). 46. (7). 366. (1). 405. (1). 410. (2). Tidd, & ed. 635 to 638. and index, tit. Over. 1 Chit. on Pl. 3f9 to 3′′

pray ir. aid, or call for assistance of another, to help him to plead, be cause 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 (i), 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 afterwards makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value against the deficient vouchee. In assises indeed, where the princi. pal 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 chartae 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 (k). In many real actions also (1), 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,63that is, that the pleadings may be staid; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby (m). But, by the statutes of Westm. 1. 3. Edw. I. c. 46. and of Glocester, 6 Edw. I. c. 2. in writs of entry sur disseisin in some particular cases, and in actions ancestrel brought by an infant, [301] the parol shall not demur: otherwise he might be deforced of his whole property, and even want a maintenance till he came of age. ikewise 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 (n). Nor shall an infant patron have it in a quare impedit (o), since the law holds it necessary and expedient that the church he immediately filled (13).

So

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 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,

(1) Book II. Append. No. V. § 2
(k) F. N. B. 135.
(1) Dyer, 137.

(13) In New-York, imparlances, vouchers, aid prayers, and receipts are abolished, (2 R. S. 341,17): this was proper in consequence of abolishing the old real actions for trying title. Suits against heirs are not here delayed on account of their infancy, but guardians are

(m) Finch, L. 360.
(n) 1 Roll. Abr. 137.
(0) Ibid. 138.

appointed for them, (id. 454, ◊ 43); but the execution on the decree against such infants is not to be executed for one year after the decree. (Id. 455, § 54.)

By the rules of the court, and by special or ders, the defendant has time to plead (63) See Hov. n. (63) at the end of the Vol. B III.

I spe

of which we have before spoken, and which are granted of course, or cial, 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 (p).

1. Dilatory pleas are (14), 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. To 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 praemunire, not in rerum natura (being only a fictitious

person), an infant, a feme-covert, or a monk professed (15).3 In [*302] 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 (16). 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, for wrongs actually done or committed by the defendant, as tres pass, battery, and slander, the rule is that actio personalis moritur cum persona (q); 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, 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 (r): being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before (17).

(p) 12 Mod. 529. (g) 4 Inst. 315.

(14) These pleas are not favoured by the courts, and they must be filed within four days after the day upon which the declaration is delivered, both days being inclusive. T. R. 277. 5 T. R. 210.

(15) 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 shew that the plaintiff is for ever precluded, should in general be pleaded in abate ment. 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 janed. 3 T. R. 627. Bac. Ab. Abatement, G.

*16) Pleas in abatement to the writ, are so

(r) March. 14.

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. & P. 399. 1 B. & 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. & 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. & 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. & P. 647. 5 Moore, 168.

(17) In New-York, actions of trespass may be brought by executors and administrators against any one who has wasted, destoyed

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 & 5 Ann. c. 16, no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shewn to the court to induce them to believe it true (18). 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 (s);64that is, shew him how it might be amended, that there may not be two objections upon the same account. Neither, by statute 8 & 9 W. 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 [303] 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.

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 () 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 (u), but not the debt itself; though in some particular cases the creditor will totally lose his money (v) (19). But frequently the defendant confesses one part [304]

(s) Brownl. 139. (1) Co. Entr. 271

taken, carried away, or converted to his own
ase, the goods of the testator or intestate
in his lifetime or afterwards; and also for
trespass committed on the lands of the de-
ceased in his lifetime. Executors, &c. are
also liable for such trespasses committed by
the deceased in his lifetime. (2 R. S. 114.
4, 5, 6)

(18) Sham pleas are not dilatory pleas with ne statute, and an affidavit is not necessary in all cases, thus, a plea of privilege, as an

(64) See Hov. n. (64) at the end of the Vol. B. III.

of the complaint (by a cognovit actionem in respect thereof) (20), and traverses or denies the rest in order to avoid the expense of carrying that

(20) As to cognovits in general, see Tidd, 8 ed. 606 to 609. Lee's Dict. tit. Cognovit.

ney into Court." As to the replication, &c. see also 3 Chit. on Pl. 1151 to 1156, and Lee Dict. tit. "Tender."

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. 88. 1 Cromp. 152. 2 M. & 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. ibid. 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 to be 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. & 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. 3 ed. 239. Tidd, 8 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. & R. 305. A tender of 201. in bank notes, with a request to pay over the difference of 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 Campb. 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., By 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. C. 91. So is a tender accompanied with the demand of a receipt in full, (5 Esp. Rep. 48. 2 Campb. 21. seď 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, I Stra. 533. and the defendant must do all in his power to make it good. I Stra. 504.

With respect to the time of the tender, it should be observed, that in order to avoid the defendant's liability to damages for the nonperformance of the contract, it should be made in the very time agreed upon for the performance of such contract; a tender after such time only goes in mitigation of damages for the breach of the contract, and not even then if the tender be not made before the writ sued out. 7 Taunt. 487. See 21 Jac. I. c. 16. s. 5. It is said to have been decided by Buller, J., that a tender on the day the bill is filed is not available, there being no fraction of a day, Imp. K. B. 324; consequently, if payment of a bill has been demanded on the day it was due, and the acceptor plead a subsequent ten der, it will not avail, 8 East, 168. 5 Taunt. 240.1 Marsh. Rep. 36. 1 Saund. 33. a. note 2.

But that doctrine is not law, and 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 it the plaintiff brings his action, and discontinues it, and commences another, a tender before the latter action is good. 1 Moore, 200. To constitute a good tender of stock, it should be made on the very day, 1 Stra. 579; and at the last part of the day it can be accepted. Id. 777. 832. Any party, being an agent of the debtor, may tender the money. 2 M. & 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. Campb. 477. Tender to an attorney, autho rized to issue out a writ, &c. is good." Dougl 623. And a tender to an agent has been held