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:(w) which

(*) Styl. Pract. Reg. (edit. 1657) 201. 2 Keb. 555

Salk. 596.


guineas. 3 Camp. 70. 1 Camp. 181. 6 Taunt. 336. But a tender of a larger sum generally is good. 5 Rep. 114. 8 T. R. 683; sed vide 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. 335. Peake C. N. P. 88. 2 Esp. C. 711. 3 Camp. 70; and see 1 Gow. C. N. P. i2i. Á 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. C. 91. So is a tender accompanied with the demand of a receipt in full, (5 Esp. Rep. 48. 2 Camp. 21 ; sed vide Peake C. 179. Stark. on Evid. part 4, 1392, n. (8),) or upon condition that it shall be received as the whole of the balance due, (4 Camp. 156,) or that a particular document shall be given up to be cancelled. 2 Camp. 21. To constitute a good tender of stock, the buyer must be called on opening the books, (1 Stra. 533,) and the detendant must do all in his power to make it good. 1 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 non-performance 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. Sve 21 Jac. I. c. 16, 8. 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 tender, 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 if 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. 2 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. 1 Camp. 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.

2dly. 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. & P. 234. 3 B. & P. 14:) i in covenant, unless for the payment of money, (7 Taunt. 486. 1 Moore, 200, 3. 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. lv cannot be pleaded to an action for dilapidations, (8 T. R. 47. Stra. 906;) or for nou repairing, (2 Salk. 596 ;) or against a carrier for goods spoiled, though the tender should be of the invoice-price, (2 B. & P. 234;) or for not delivering goods at a certain price per ton, (3 B. & 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 defendanı 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, il seems, be available. 1 H. Bla. 299. So a tender may be made with effect to a demand for navigation, (Calls. 7 T. R. 36. 1 Stra. 142,) or in an action for principal and interest duo on bonds for payment of moneys by instalments. 3 Burr. 1370. So the penalty of


is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff;30 by paying into the hands of the proper officer of the


a bond may with effect be tendered. 2 Bla. 1190. So the arrears of a bond for 401. payable by 5l. per annum. 2 Stra. 814. So a tender may with effect be made in covenant for rent, or for the advanced rent of 5l. per acre for ploughing meadowgrounds. 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, s. 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. 2 T. 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. See ante, 1 book, 354, n. 37, seg.

Also by the 21 Jac. I. c. 16, s. 5, in case of involuntary trespasses, tender of amends may be made. See ante, 16.

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 afterwards 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 defend. ant would defeat the action by the tender afterwards. See Salk, 622. 8 East, 168. 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. 3 Camp. 296. 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 T. R. 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, (and 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. & 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. & P. 334, note a. Lord Raym. 642. ? 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. Doug. 448. But where the debt originally was under 51. the defendant is, it seems, entitled to the benefit of the Court of Requests' Act for London, though he has pleaded a tender (5 M. & S. 196) or paid money into court. 5 East. 194.

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 Camp. 181. 5 B. & A. 630. A subsequent demand of a larger sum will not suffice, (id.,) nor 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 a discharge. 1 Camp. 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 Camp. 478. A subsequent application to one of two joint debtors, and a refusal, is sufficient. 1 Stark. 323. * 4 Esp. 93. Noy, 135. Vin. Abr. 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. 8 East, 168. 1 Saund. 33, n. 2. Bull. N. P. 156. 1 Camp. 478.-Cartty.

20 The allowing the defendant to pay money into court was introduced for the purpose of avoiding the hazard of proving a tender; and in all cases where there has been no tender, or the tender cannot be proved, it should not be pleaded, but the defendant should merely pay the admitted claim into court. The cases in which the proceeding is allowed are similar to those in which a tender may be pleaded, and which will be found supra, note (19). One case, however, should be noticed, viz., where goods have been taker court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any further 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 afidavit, (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.4. 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 non-suited 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. 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.(r) 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 into 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, oné 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.23 (**) Sp. L. b. 6, c. 4.

(*) Ff. 16, 2, 1.

under a mistake without any loss to the owner, the court, upon motion, will stay the proceedings in an action of trespass against a public officer, upon the defendant's undertaking to restore them or to pay their full value with the costs of the action. 7 T. R. 53.-Cutty.

a By statute 3 & 4 W. IV. c. 42, s. 21, and now by the Common-Law Procedure Act, 1852, the defendant in all actions (except actions for assault and battery, and false imprisonment, libel, stander, malicious arrest or prosecution, crim. con., or debauching the plaintiff's daughter or servant) may, by leave of the court or a judge, pay into court a sum of money by way of compensation or award.—Stewart.

* The effect of the payment of money into court is nearly similar to that of a tender. See supra, note (19). Lee's P. Dict. 2d ed. 1013. 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. & P. 392.-Chitty.

* 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 Chitt. 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 same 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 T. R. 599. 3 Taunt. 76. 2 Taunt. 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 T. R. 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. & Cres. Pleas that totally deny the cause of complaint are either the yeneral issue, or a special plea, in bar.

1. The general issue, or general plea, is what traverses, th warts, and denies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not 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 trial 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 former action, the defendant therein might then maintain an action for the surplus. 3 Esp. Rep. 104. Though the defendant does not avail himself of the set-off, intending to bring a cross-action, the plaintiff' may defeat it by taking a verdict for the whole sum he proves to be due to him, subject to be reduced to the sum really due on the balance of accounts, if the defendant will afterwards enter into a rule not to sue for the debt intended to be set off; or he may take a verdict for the smaller sum, with a special endorsement on the postea, as a foundation for the court to order a stay of proceedings, if an action should be brought for the amount of the set-off. 1 Camp. 252.

The demand, as well of the plaintiff as of the defendant, must be a debt. A set-off is not allowed in an action for uncertain damages, whether in assumpsit, covenant, or for a tort, trover, detinue, repleyin, or trespass. Bull. N. P. 181. 3 Camp. 324. 4 T. R. 512. 1 Bla. Rep. 394. 2 Bla. Rep. 910.

The only cases in which a set-off is allowed are in assumpsit, debt, and covenant for the non-payment of money, and for which an action of debt or indebitatus might be sustained, (2 Bla. Rep. 911;) or where a bond in a penalty is given for securing the payment of money on an annuity, (2 Burr. 820 ;) or at least stipulated damages. 2 T. R. 32. The demand to be set off, also, must not be for unliquidated damages, although incurred by a penalty. 1 Bla. Rep. 394. 6 T. R. 488. 1 Taunt. 137. 2 Burr. 1024.2 Bla. Rep. 910. i Taunt. 137. 5 B. & A. 92. 3 Camp. 329. Peake's Rep. 41. 6 Taunt. 102. 1 Marsh. 514, S. C. 2 Brod. & B. 89. 1 M. & S. 499. 5 M. & S. 539, &c. See cases in 1 Chitt. on Pl. 4th ed. 486, 487. Stark. on Evid. 1312, part 4. The defendant's bringing an action or obtaining a verdict for a debt is no waiver of the right to set off the debt. 2 Burr. 1229. 3 T. R. 188. And a judgment may be pleaded by way of set-off, though a writ of error be depending upon it, (3 T. R. 188, in notes ;) but not so after plaintiff be taken in execution. 5 M. & S. 103. The debt to be set off must be a legal and subsisting demand: an equitable debt will not suffice. See 16 East, 36, 136. 7 East, 173. A demand barred by the statute of limitations cannot be set off. 2 Stra. 1271. Peake's Rep. 121. Bull. N. P. 180. An attorney cannot set off his bill for business done in court unless he has previously, and in a reasonable time to be taxed, delivered a bill signed. 1 Esp. C. 449. But it is not necessary that a month should intervene between the delivery of the bill and the trial. Id.

The debt sought to be recovered and that to be set off must be mutual and due in the same right: therefore a joint debt cannot be set off against a separate demand, nor a separate deht against a joint one, (2 Taunt. 173. Montague, 23. 5 M. & S. 439,) unless it be so expressly agreed between all the parties, (2 Taunt. 170;) and a debt on a joint and several bond of several persons may be set off to an action brought by only one of the obligors. 2 T. R. 32. A defendant sued for his own debt may set off a debt due to him as surviving partner, (5 T. R. 493. 6 T. R. 582;) and in an action brought by an ostensible and a dormant partner, the defendant may set off a debt due from the ostensible partner alone. 2 Esp. C. 469.7 T. R. 361, n. c., S. C. See Peake, 197. 12 Ves. 346. 11 Ves. 27. Id. 517. 16 East, 130. A debt due to a man in right of his wife cannot be set off in an action against him on his own bond. Bull. N. P. 179. A debt due from a wife dum sola cannot be set off in an action brought by the husband alone, unless the defend. ant has made himself individually liable. 2 Esp. C. 594. A debt from an executor in his own right cannot be set off against a debt to the testator, (3 Atk. 691,) though the executor is residuary legatee. Id. So a debt which accrued to the defendant in the life time of the testator cannot be set off against a debt that accrued to the executor even in that character after the testator's death. Bull. N. P. 180. Willes, 103, 106.

Questions of difficulty frequently arise in cases of set-off, where the agent of a party deals as principal. The rule in these cases is, that if an agent dealing for a principal

, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him as the principal ; and though the real principal may appear and sue, yet the purchasor may in such case set off any claim he has against the agent. 7 T. R. 360. 1 M. & S. 576. 2 Marsh. 501. Holt, C. N. P. 124. But a debt duo from a broker cannot be set off in an action by the principal against the purchasor


guilty :(y) in debt upon contract, nihil debet, he owes nothing; in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul disseisin, no disseisin; and in a writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue: by which we mean a fact affirmed on one side and denied on the other.

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea ; which was originally intended to apprize the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be thus specially pleaded may be given in evidence

[*306 upon

the general issue at the trial. But the science *of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case, and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness antiently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.

2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action.(z) A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was. Also a man may plead the statutes of limitation(a) in bar;24 or the timu (3) Appendix, No. II. & 4. (3) Appendix, No. III.2 6.

() See pages 188, 196. to recover the price of goods sold by the broker, not disclosing his name. 2 B. & A 137. And if an agent sells goods as his own, or has a lien upon them, and does not part with the goods unless the purchasor expressly agrees to pay him, the purchasor in an action brought against him by such agent for the price of the goods cannot set off a debt due from the owner to the purchasor. 2 Chitt. R. 387. 7 T. R. 359. But if an agent deliver goods without payment, and thereby parts with his lien, the purchasor may, in an action by the agent, set off a debt due from the principal. 7 Taunt. 243. And where an auctioneer had sold to the defendant the goods of A. as the goods of B., it was held that this was such a fraud that defendant might set off a debt due to him from B. against the price of the goods of A. Id. ibid. 1 J. B. Moore, 178. As to set-off in actions, by or against assignees of bankrupts, see 1 Chitt. on Pl. 492 to 494. Stark. on Evid. part 4, 106, ante, 2 book, 472, k., (n.) And 6 Geo. IV. c. 16, $ 50.-Cutty.

** As questions on the statute of limitations (21 Jac. I. c. 16) so frequently occur, will consider this subject more fully in the following order, viz., First, as to what cases the statute extends, and herein in what cases payment of a debt may be presumed at common law. Secondly, when the statute begins to take effect; and herein of the exceptions contained in the statute. Thirdly, what is a good commencement of an action to take the case out of the statute; and, Lastly, what acts or admissions will revive the claim.

First. To what CASES THE STATUTE EXTENDS.—The statute does not extend to actions of account, or of covenant, or debt on specialty, or other matter of a higher nature, but only to actions of debt upon a lending, or contract without specialty, or for arrearages of rent reserved on parol leases. Hut. 109. 1 Saund. 38. 2 Saund. 66. Tidd, Pr. 8th ed. 15. It does not extend to warrants of attorney. 2 Stark. 234. It extends to bills of



[ocr errors]
« ForrigeFortsett »