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either one or the other when and where it should behoove him, he acknowledged the jurisdiction of the court.(u) But of late years these niceties have been very deservedly discountenanced, (w) though they still seem to be law, if insisted on.)
Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas : and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court.(y) Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As when a scholar, or other privileged person, of the universities of Oxford or Cambridge, iš impleaded in the courts at Westminster for any cause of action whatsoever, unless upon a question of freehold.(2)' In these cases, by the charter of those learned bodies, confirmed 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 *299] 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 cases of making another judge.(d)
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 further suit, by talking with the plaintiff; a practice which is(f) supposed to have arisen from a principle of religion in obedience to that precept of the gospel, “ Agree with thine adver. sary quickly, whilst thou art in the way with him.”(9) And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve
(*) En la defence sont iij choses entendants; per tant quil case the chancellor of Oxford claimed cognizance of an defende tort et force, home doyt entendre quil se excuse de tort action of trespass brought against himself, which was dis a luy surmys per crente, et fait se parlie al ple; e per tant allowed, because he should not be judge in his own cause quil defende les damages, il affirm le parte able destre re- The argument used by serjeant Rolfe on behalf of the cog. spondu; et per tant quil defende ou et quant u devera, zł nizance is curious and worth transcribing :-Jeo rous dirai accepte la poiar de court de conustre ou trier lour ple. Mod. un fable. En ascun temps fuit un pape, et aroit fait un lenend. cur. 408, edit. 1534. See also Co. Litt. 127.
grand offence, et le cardinals vindrent a luy et disoyent a luy, (W) Salk. 217. Lord Raym. 282.
"peccasti:" et il dit, "judica me ;" et is disoyent, * non posCarth. 230. Lord Raym. 217.
sumus, quia caput es ecclesiæ : judica teipsum:" e l'apostol (v) 2 Lord Raym. 836. 10 Mod. 126.
dit,“ judico me cremari;" et fuit combustus ; et apres fuit un (*) See page 83.
sainct. Et in ceo cas il fuit son juge demene, et issint n'est (a) Hardr. 505.
por inconvenient que un home soit juge demnene. 6) Rast. 128, &c. 1 Chitty on Pl. 364.
( Append. No. III. & 6.
Gilb. Hist. Com. Pl. 35. (d) Hob. 87. Year-book, M. 8 Hen. VI. 20. In this latter (6) Matt. v. 25.
(C) 2 Ventr. 363.
• But only resident members of either university are entitled to this privilege, it being local as well as personal. 2 Wils. 310.-Cutty.
10 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 judge in his own cause. Thus, in Matthew vs. Ollerton, (4 Mod. 226. Comb. 218. Hardr. 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, Justice,-viz.:—The serjeant took a horse from my lord of Canterbury's bailiff for a deodand, 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 Jale and per totam curiam.- "UTTY.
tables, which expressly directed the plaintiff and defendant to make ap the matter while they were in the way, or going to the prætor,-tu 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, or of the bond, 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 antient 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 plaintiff's declaration. *In real actions also the tenant may pray in aid, or call for assistance of
[*300 another, to help him to plead, because 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 assizes, indeed, where the principal 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 chartæ 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, that is, that the pleadings may be stayed ; 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 somo particular cases, and in actions ancestrel brought by *an infant, the parol shall not demur: otherwise he might be deforced of his whole
[*301 property, and even want a maintenance till he came of age. So likewise 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, since the law holds it necessary and expedient that the church be immediately filled. 12
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 (*) Append. No. III. & 6.
() Finch, L. 360. Book II. Append. No. V. & 2
(") 1 Roll. Abr. 137.
P. N. B. 135.
But now a defendant is not allowed oyer of the writ. 1 B. & P. 646. 3 B. & P. 395. 7 Fast, 383. As to the demand and 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, 8th ed. 635 to 638, and Index, tit. Oyer.. i Chitt. on Pl. 369 to 375.— CHUTTY.
lo And now, indeed, by.statute 11 Geo. IV. and 1 W. IV. c. 47, s. 10, the parol skall oot demur in any action.—KERR.
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, of which we have before spoken, and which are granted of course; or special, 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,13 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 antient 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 præmunire, not in rerum natura, (being only a fictitious person,) an infant, a *302]
feme-covert, or a monk professed. In 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.15 Or it may be that the plaintiff is dead; for the death of either party is at once an abatement of the suit. 16 And in actions merely personal,
(P) 12 Mod. 529.
13 These pleas are not favored by the courts; and they must be filed within four days after the day upon which the declaration is delivered, both days being inclusive. 1 T. R. 277. 5 T. R. 210.-Chitty.
14 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 show that the plaintiff is forever precluded should in general be pleaded in abatement. 4 T. R. 227. Some matters may be pleaded either in abatement or bar; as outlawry for felony, alien enemy, or attainder, &c. Bac. Abr. 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 joined. 3 T. R. 627. Bac. Abr. Abatement, G.-Chitty.
15 Pleas in abatement to the writ are so 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.-Chitty.
But now the writ itself may be amended; and further restrictions have, by the Common-Law Procedure Act, 1852, been imposed on pleas in abatement in addition to those previously imposed by statute 3 & 4W. IV. c. 42. By that statute (s. 8) no plea in abatement for the non-joinder of any person as a co-defendant shall be allowed unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with certainty in an affidavit verifying the plea. And, by s. 11, no plea in abatement for a misnomer shall be allowed in any personal action; but, in all cases in which a misnomer would but for that act have been pleadable, the defendant may cause the declaration to be amended at the cost of the plaintiff, by inserting the right name upon a judge's summons founded on an affidavit of the right name. And, by s. 12, in all actions upon bills of exchange or promissory notes or other written instruments, the parties to which are designated by the initials or some contraction of the Christian or first name, it is sufficient in every affidavit to hold to bail, and in the process or declaration to designate such persons by the same initial letter or contraction of the Christian or first name.STEWART. 16 But now, by the Common-Law Procedure Act, 1852, an action shall no longer abate arising er delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona ;() 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 hat their testator had before.
These pleas to the jurisdiction, to the disability, or in abatement, were for merly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now, by statute 4 & 5 Anne, c. 16, no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shown 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 ;() that is, show 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 court: praying “ judgment, whether the court will have further cognizance of
[*303 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 súe out a new writ, by leave obtained from the court :(t) or to amend and new-frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat 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 meritis 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
(*) Brownl. 139.
4 Inst. 315.
( Co. Entr. 271.
by the death of either party, but may be continued by the legal representative of sole plaintiff on his entering (by leave of the court) a suggestion of the plaintiff's death on the record ; or by a surviving plaintiff when the cause of action survives; or against the legal representative of a defendant.--Stewart.
17 By statute 3 & 4 W. IV. c. 42, s. 2, an action of trespass, or trespass on the case, may be maintained by the executors or administrators of any deceased person for injury to his real estate in his lifetime, if such injury were committed within six calendar months before death and the action brought within one year after the time of the death; and an action of trespass, or trespass on the case, may also be maintained against executors or administrators for wrongs committed by the deceased to another's property, real or personal, such injury having been committed within six months of the death and the action brought within six months after administration taken.-STEWART.
15 Sham pleas are not dilatory pleas within the statute, and an affidavit is not necessary in all cases: thus, a plea of privilege as an attorney of the same court, to be sued by bill, it is supposed does not require an affidavit. 3 B. & P. 397. 1 Chit. on Pl. 401. As to the form of the affidavit, see 1 Chit. on Pl. 402. Tidd, 8th ed. 693.-Chitty. VOL. II.-14
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 de. fendant 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 *304]
creditor will totally lose his money.(v)19 *But frequently the defendant confesses one part of the complaint, (by a cognovit actionem in respect (*) 1 Ventr. 21.
(*) Litt. & 338. Co. Litt. 209.
19 That is to say, if the only right which A. has to the money arise from the offer which B. makes to him of it, and he once refuse to accept that offer, he thereby loses all right, and of course can bring no action. The case put by lord Coke is, “If A., without any loane, debt, or dutie preceding infeoff B. of land, upon condition for the payment of a hundred pounds to B., in nature of a gratuitie or gift, in that case if he (A.) tender the hundred pounds to him (B.) according to the condition, and he refuseth it, B. hath no remedie therefor.” Here B. had primarily no title to the land or the money: if he does not accept it, therefore, when offered, no debt is due to him, but A. by the offer has discharged his land from that burden which he had voluntarily imposed on it. But supposing the land to have been mortgaged by A. to B. for money lent, which A. is to repay on a certain day, then if the money is duly tendered on the day and refused, A. shall have his land again, because he has performed the condition ; but still B. may bring an action for his money.
The plea of tender must always, except in the case above supposed, be accompanied by a bringing of the sum tendered into court, or the plea is a mere nullity; and though the plaintiff denies that the tender was made before he commenced the action, or disputes the sufficiency of the sum tendered, and therefore goes on with the action, still he is entitled to take that sum out of court at once, which the defendant by the tender has admitted to be his due. If, however, he neglects to do so, and a verdict on either point should pass for the defendant, the court will then lay hold of the money as a security for the defendant's costs. Le Grew vs. Cook, 1 B. & P. 332. See also Birks vs. Trippet, 1 Saund. Rep. 33, a., note.-COLERIDGE.
As to the form and requisites of this plea in assumpsit, see 3 Chit. on Pl. 4th ed. 992; in debt, id. 955, and Lee, Prac. Dict. tit. “Tender;" and as to the payment of money into court on, see Tidd, 8th ed. Index, tit. "Money;" Lee, Dict. tit. “Payment of Money 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. 3d ed,239. Tidd, 8th 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 bum, and making cross-demand, is insufficient. 2 D. & R. 305. A tender of 207. in banknotes, with a request to pay over the difference of fifteen guineas, is not a good tender ns to the fifteen guineas, though it would have been otherwise if the tender had been in