fendant.

J. Buller to entitle the bill (which was intituled of Hilary though before term generally) the day it was actually filed, which was it is filed, will opposed on the ground of the tender being made before not assist dethe bill was on the file: the judge said, that it would not assist the defendant at all, for he could not take advantage of it in pleading, there being no fraction of a day. Hil. 30 Geo. 3. (a)

By stat. 24 Geo. 2. c. 44. s. 24. Tender of amends Tender by may be made by the justices of the peace, within a justices. month after notice given of an action intended to be brought against them, for any thing done by them in the execution of their office, and they may plead the same with not guilty and any other plea, with leave of the court; and in case they shall neglect to make such tender, they may, before issue joined, pay money into court.

This statute relates only to actions of tort. Filtham v. To what the Terry, E. 13 Geo. 2. cited in Sellon, 352. Vide 2 Black. statute relates. Rep. 589. C. P. where it was held, that it must appear

he was sued as a justice for some misbehaviour in his office, before court will permit him to pay the money tendered into court.

A plea of tender after the day of payment of a bill of exchange, and before the action is brought, is not good; though the defendant aver that he was always ready to pay from the time of the tender, and that the sum tendered was the whole money then due, owing, or payable to the plaintiff in respect of the bill, with interest, from the time of the default for the damages sustained by the plaintiff by reason of the non-performance of the promise, 8 East. 168. Hume v. People.

The defendant may, to a trespass quare clausum fregit, Trespass. plead a disclaimer, and that the trespass was by negligence, or involuntary, and tender of sufficient amends before action brought; whereupon, or on some of them,

(a) It is no answer to a plea of tender before the exhibiting of the plaintiff's bill, that the plaintiff had, before such tender retained an attorney and instructed him to sue out a latitat against the defendant, and that the attorney had accordingly applied before such tender, for such writ, which was afterwards sued out. Briggs v Calverley, 8 Term Rep. 629.

Under distress

for rent.

Pound breach.

Excise and

the plaintiff shall be enforced to join issue. Stat. 21 Jac. 1. c. 16.

Tender may be made before action, for any unlawful act done by a person who has distrained for rent, justly due, 11 Geo. 2. c. 19. s. 20. likewise in distraining for money justly due for the relief of the poor. 17 Geo. 2. c. 38. s. 10.

It is no answer to an action for treble damages on the stat. 2 W. and M. c. 5. for a pound breach, that the rent and the demand were tendered, after the distress and impounding. Firth v, Purvis, 5 Term Rep. 432.

Tender of amends is allowed to be made and pleaded Custom-house by excise officers for any offence committed quá officers. 23 Geo. 3. c. 70. s. 30. And also Custom-house officers. 24 Geo. 3. c. 70.

officers.

Any money coined at the Mint, good.

Bank notes

are no tender if objected to except in distress for rent,

&c,

To an avowry for damage feasant, when tender to be made.

In a plea in bar of tender of rent in replevin, the money ought not to be brought into

court.

Costs after

A tender in any money coined at the Mint, upon which there is the king's stamp, is good; for all such money is good in proportion to its value, without a pro

clamation. Salk. 446. Comb. 387.

Bank notes if objected to are not a legal tender, 2 Bo8. and Pul. 526. Grigby v. Oakes (except in cases of distresses for rent and levying of money under process of execution,) in which cases these are legal tenders by 52 Geo. 3. c. 80. s. 8. Tender in bank notes is good in all cases if not objected to at the time on that account. 3 T. R. 554. Wright v. Reed.

To an avowry for damage feasant in replevin, tender must be pleaded to have been made before impounding; for it is not within the statute of Jac. 1. which goes only to trespass, where tender of amends may be pleaded to have been made at any time before action brought. Lutw. 1596.

To an avowry for rent, the plaintiff may plead a tender and refusal, without bringing the money into court; because if the distress were not rightfully taken, the defendant must answer the plaintiff his damages. Bull. 60. Salk. 584.

But if the distress were rightfully taken, the plaintiff cannot plead tender of rent and costs in bar of an avowry for rent in any case, unless the distress was made of corn, grass, &c. growing on the premises; and then such plea is given by 11 Geo. 2. c. 19. 8. 9.

Action of assumpsit on a tradesman's bill, plea of tender made, tender as to 21. 18s. 4d. part of the demand, and non

assumpsit as to the rest. Verdict for defendant on the and the tender tender, and for plaintiff on non assumpsit, but with da- found for defendant, and mages under 40s. viz. 7s. 6d. Motion for suggestion on verdict for stat. 23 Geo. 2. c. 33. s. 19. he residing in Middlesex. plaintiff on Rule discharged. Cur. The tender was not an extin- the non asguishment of the debt; and the question is, what appears sumpsit, 7s.6d. to have been due at the time of the action brought, for

if that exceed 40s. the inferior court has no jurisdiction. Heaward v. Hopkins, Dougl. 448.

The London court of conscience has a jurisdiction by London act. stat. 39 and 40 Geo. 3. c. 104. where it does not exceed

51. See 5 East. 194.

court on the

plea.

The money is to be paid to Messrs. Hoares, bankers, How to pay Fleet-street, who will give a receipt for the same; take it money into to Messrs. Provost and Chambre, who will give a receipt on the draft of the plea, which plea is to be signed by counsel, and afterwards filed with the clerk of the papers, or delivered as the case may be. Fee to counsel 10s. 6d.

As to the Time of Pleading.

Formerly the plea of tender was pleaded in the same Formerly tenmanner as a plea in abatement, within the four days, but der pleaded the following case allows it to be pleaded after a judge's days.

order.

Time was given by a judge's order to plead, until two days before the essoign-day of this present term, on the usual terms of pleading issuably, &c. This order was not obtained till after the four days rule for pleading was expired. Before the term, and within the time allowed by the judge's order, the defendant pleaded a plea of tender, which plea was intituled as of the preceding term. Aspinall moved to set it aside, and for leave to sign judgment. Winn, for defendant, said, that it was a fair, honest plea, in its own nature; and that it was within time, not being after imparlance, but as of the last term, and also that it was an issuable plea within the meaning of the judge's order; though he acknowledged that a plea in abatement (though in strictness indeed issuable) would not be so, because it tended to delay the plaintiff. The court concurred entirely in what Winn had urged in support of the regularity of the plea, and the motion was denied. 1 Burr. 59. Kilwick v. Maidman.

within four

But now may be pleaded after a judge's order.

Properly the plea should be pleaded the term the de- When to be pleaded.

What plea should state,

When may take it out,

claration is of, if not you must have a judge's order to plead it as of the next term.

This plea should state, tout temps prist, Giles v. Harlis, 1Ld. Raym. 254. Fort. 376. for if the money is to be paid upon a certain day, it is no answer to shew, that at a subsequent day, he was ready to have paid it unless he were always ready to have paid it from the time it first became due. Per Lord Ellenborough, 8 East, 169. Hume y. Peploe.

And this being a plea in bar to plaintiff's demand, which is for damages; and therefore it ought to shew upon the record that he never had any such cause of action; per Lawrence, J. 8 East, 171. Hume v. Peploe,

If the defendant bring money into court on a plea of tender, the plaintiff may take it out, though he reply though he re- that the tender was not made before actions brought. ply. See 1 Bos. and P. 332. Le Grew v. Coke. (a)

Fresh demand and refusal.

Subsequent demand by attorney's clerk not

good.

Fresh Demand and Refusal.

A right to damages, on account of non-payment of a debt, or non-performance of a duty, may, after being taken away by a tender and refusal, be revived again by a demand subsequent to the tender and refusal; a new cause of action arises from the non-payment or the non-performance thereof upon such demand, 5 Bac. Abr. 12. Brownl. 71.; and therefore the plaintiff may reply such subsequent demand and refusal by the defendant, which if proved, plaintiff must have a verdict.

If upon a tender pleaded, the plaintiff will not receive the money, but take issue upon the tender, and it is found against him, the money is lost for ever. Co. Litt. 207. Hob. 199. Ld. Ray. 642.

Where the issue is on a subsequent demand and refusal, it should appear in evidence, that the person who made the demand was properly authorized to receive the money; that though payment to the attorney while an

(a) Plea of tender, with a profert in curia of the money on certificate of no money paid, court held it no plea, and plaintiff might sign judgment. Pether et al. v. Shelton, 1 Str. 638.

action was subsisting was good, that it was otherwise to his clerk, who shewed no authority but his master's order to demand it. Lord Kenyon, Esp. N. P. 115. Hil. 34 Geo. 3.

If the plaintiff takes the money out, he may proceed If plaintiff for further damages by joining issue on the general issue takes money pleaded, and confessing the tender in his replication.

out of court.

PLEAS IN ABATEMENT.

bill.

AND the said C. D. in her own proper person comes Coverture and says, that she now is, and before and at the time pleaded in abatement to of exhibiting the bill of the said A. B. was and ever an action by since hath been, covert and married to one C. D. then and still her husband, and living, to wit, at London aforesaid, in the parish and ward aforesaid, and this she the said C. D. is ready to verify; wherefore because the said C. D. is not named in the said bill, the said C. D. prays judgment thereof, and that the same may be quashed, &c.

christian name

(a) And C. D. against whom the said James Lee Misnomer hath issued his original writ, by the name of E. D. in pleaded in the bis own person comes and says, that he was baptized by to an action the name of C. D. to wit, at Westminster, aforesaid, and by original. by the christian name of C. hath always since his baptism hitherto been called and known; without this, that be the said C. D. now is, or at the time of suing forth the said original writ of the said A. B. was or ever before had been called or known by the christian name of E. as by the said writ is above supposed: and this he the said John Stout is ready to verify; wherefore he prays judgment of the said writ, and that the same may be quashed, &c. J. M.

The defendant is to file this plea with the clerk of the To be filed. papers, with the following affidavit annexed:

(a) Entitle the plea thus, C. D. sued by the name of E. D. ats. A. B.