Or by pay ment of money into court. this sort of confession is the payment of money into court:" which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; (35) by paying into the hands of the w Styl. Prac. Reg. (edit. 1657.) 201. 2 Keb. 555. Salk. 596. 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 vol. 354. n. 30. et seq. 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 defendant would defeat the action by the tender afterwards. Sec 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 Campb. 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, 8 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. 2 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. Dougl. 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 Campb. 181. 5 B. & A. 630. A subsequent demand of a larger sum will not suffice, id.; or a subsequent de mand, 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 Campb. 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 Campb. 478. A subsequent application to one of two joint debtors, and a refusal, is sufficient. 1 Stark. 323. 4 Esp. 93. Noy, 135. Vin. Ab. 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 Campb. 478. (35) The allowing the defendant to of a 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 proceedings. This may be done of motions. 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 cause; and it is usually grounded upon an affidavit (the perfect Affidavits. 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. 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. (36) 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." To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the or set-off. 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, [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, one debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the w Sp. L. b. 6. c. 4. 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 (33). One case however should be noticed, viz. where the goods have been taken under a mistake, without any loss to the owner, the court, upon motion, will stay the proceedings in an action of tres * Ff. 16. 2. 1. pass against a public officer, upon the de, (36) The effect of the payment of mo trial; which shall operate as payment, and extinguish so much of the plaintiff's demand. (37) (37) 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 Chit. on Pl. 4 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 setoff 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 Campb. 594. 5 Taunt. 148.; though he cannot safely arrest. 3 B. & Cres. 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 setoff, 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 indorsement 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 Campb. 252. A The demand, as well of the plaintiff as of the defendant, must be a debt. set-off is not allowed in an action for uncertain damages, whether in assumpsit, covenant, or for a tort, trover, detinue, replevin, or trespass. Bull. N. P. 181. 3 Campb. 329. 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. 22. 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. 1 Taunt. 137. 5 B. & A. 92. 3 Campb. 329. Peake Rep. 41. 6 Taunt. 162. 1 Marsh. 514. S. C. 2 Brod. & B. 89. 1 M. & S. 499. 5 M. & S. 539, &c. See cases in 1 Chit. on Pl. 4 ed. 486, 7. 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. 186. 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 Rep. 121. Bull. N. P. 180. nial. Pleas, that totally deny the cause of complaint, are either the ge- Pleas in deneral issue, or a special plea, in bar. ral issue to 1. The general issue, or general plea, is what traverses, thwarts, 1. The geneand denies at once the whole declaration; without offering any spe- different cial matter whereby to evade it. As in trespass either vi et armis, actions. or on the case, non culpabilis, not guilty; 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 disseiy Append. No. II. § 4. 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 debt 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. Bul. 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 defendant 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 lifetime of the testator, cannot be set off against a debt that accrued to the executor even in that VOL. III. character after the testator's death. Bull. Questions of difficulty frequently arise St.187 When spe cial matter in evidence under the general ssue.(38) sin, 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. (38) Formerly the general issue was seldom pleaded, except when the may be given 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 apprise 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 upon the general issue at the trial. But the [306] 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 anciently observed, yet experience has shewn it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other. 2. Special 2. Special pleas, in bar of the plaintiff's demand, are very various, pleas. (39) according to the circumstances of the defendant's case. (39) 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. 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. |