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When an action is brought in this State by any person who is not an inhabitant thereof, or who cannot be found therein to be served with process, he shall be held to answer to any action brought against him by the defendant; provided the demand in the two cases be of such a nature, that the judgment or execution in the one case can be set-off against the judgment or execution in the other. If there are several defendants in the original action, each of them shall be authorised to bring such cross action against the original plaintiff; and upon recovering judgment therein, he may be allowed to set-off his judgment in that which may be recovered against himself and his co-defendants, in like manner as if the latter judgment had been against himself alone. The writ in such cross action may be served on the person, who appears as attorney of the plaintiff in the original action; and in the cases mentioned, the court may order such continuances as justice may require for the defence of either of the actions, or for setting off the demand as above mentioned.'

XI. OFFER TO BE DEFAULTED, AND TENDER.

In an action founded on judgment or contract, the defendant may offer and consent, in writing, to be defaulted, and that judgment may be entered against him for a specified sum as damages; and the same shall be entered on record, and the time when the offer was made; and if the plaintiff shall proceed to trial, and recover no greater sum for his debt or damages, up to the time when the offer was made, the defendant shall recover his costs of the plaintiff, from the time of such offer, up to the time of trial; and such costs shall be set-off against the sum so offered, and judgment shall be rendered, and execution issued for the balance for either party, which way soever the case may be.2

Any person, after the commencement of a suit against him, and before the entry thereof in court, shall have the same right to tender payment of the amount due, to the plaintiff or his attorney in the action, as before the commencement of the suit."

In all cases of tender both before and after action brought, the defendant, if he would avail himself of it, must bring it into court, with what is called a profert in curia; that is, he must deposit it with the

1R. S. ch. 114, secs. 74, 75, 76. 2R. S. ch. 115, sec. 22.

3Act of 1841, ch. 1, sec. 19.

magistrate, proffering it is a full satisfaction of the plaintiff's demand. He will also at the same time pray that his costs may be taxed, and offer to pay them.1

Unless such a profert be made, the previous tender will avail the defendant nothing. Such a profert may also be made without a previous tender.

When, however, acts are to be performed by each party to a contract at the same time, and one tenders money in performance of his part, and brings his action to recover damages on failure of the other party, he is under no obligation to bring the money into court."

If the plaintiff fails to recover more than the defendant pays into court, the defendant takes costs from the time of the payment into court, if there were no previous tender, otherwise from the time of the tender.

The payment of money into court is an admission of the cause of action as set forth in all the counts, unless specially made; and where thero is a bill of particulars, it is an admission of all the items, unless specifically applied. But it is within the discretion of the court to apply this rule, or not, as justice may require.3

An offer to be defaulted is not an admission of the contract as stated in the plaintiff's declaration.*

It hardly need be said that a tender after action brought and before it is entered, can be made so as to avail the defendant only in actions on contracts."

Nothing but gold and silver coin is a good tender."

But, if a plaintiff does not object to bank notes at the time of the tender, they are considered as good, being themselves money67

The act of Congress of 1843 provides that the following coins shall pass current as money, within the United States, and be receivable by weight, for the payment of all debts and demands, at the rate following: The gold coins of Great Britain, of not less than nine hundred and fifteen and a half thousandths in fineness, at ninety four cents and six tenths of a cent per penny weight; and the gold coins of France of not less than eight hundred and ninety nine thousandths in fineness, at ninety two cents and nine tenths of a cent per pennyweight; the Spanish

117 Mass. 392. 215 Maine, 61. 35 Pick. 290. 420 Maine 37.

517 Pick. 369.
Const. U. S.
79 Pick. 542.

pillar dollars, and the dollars of Mexico, Peru, and Bolivia, of not less than eight hundred and ninety-seven thousandths in fineness, and four hundred and fifteen grains in weight, at one hundred cents each; and the five franc picces of France, of not less than nine hundred thousandths in fineness, and three hundred and eighty four grains in weight, at ninety three cents each.'

In all actions of trespass upon lands, wherein the defendant by his plea or brief statement, disclaims all right, title and interest in the land upon which the trespass is alleged to have been committed, and declares that the trespass was involuntary, or by negligence or mistake, and that he had tendered or offered sufficient amends therefor, before the action was commenced, or brings money into court to satisfy the damage the plaintiff has sustained, with costs; if upon trial it appear, that such trespass was involuntary, or by negligence or mistake, and the jury shall not assess greater damages for the trespass than the money tendered or brought into court therefor, the defendant shall recover of the plaintiff his reasonable costs.2

XII. OATH, MARRIAGE, &C. OF A PARTY.

In case of the death of either party in any action, the executor or administrator of the deceased, if the cause of action survive, may become a party to such action, such death being suggested upon the record; and the surviving party may cause the executor or administrator of the deceased party, to be served with notice from the court, fourteen days before the sitting of the court to which the same is returnable, to appear and prosecute, or defend such action, as the case may be; and upon refusal or neglect of such executor or administrator, so to appear and become a party to the suit, the court may enter up judgment upon the nonsuit or default, as the case may be, in the form prescribed in actions by or against executors and administrators.

Whether the cause of action survive or not, depend, generally upon whether it is upon contract or for tort, the former surviving, the latter, generally, not. Acts on torts survive, when the estate of the

1Acts of Congress of March 3,1843, and

18 Jan. 1837.

2Act of 1841, sec. 19.

3R. S. ch. 115, sec. 81.
44 Mass. 480-1 Pick. 71.

deceased received some gain, or his personal property was injured by the wrong.'

Actions in favor of or against any sheriff, coroner, or constable, to enforce any right, or for any act done by virtue of any precept, directed to either of said officers, in case of the death of any such officer, and no administration granted upon his estate, at the expiration of three months from the time of such death, may be prosecuted or defended by the party for whose interest such officer acted, by such party entering his own appearance, and giving such security for costs, as the magistrate may direct.2

No action, brought by any public officer in his official capacity, shall abate by reason of the death of the plaintiff; but such action may be prosecuted by his successor in office, to the uses for which the action was originally commenced; and the court before which such action may be pending, may order such amendments of the process, and such notices to the said successor, as may be necessary."

Persons under sentence of death, or imprisonment for life, and confined in the State prison in pursuance of such sentence, are to be treated, so far as their property is concerned, as if their death had taken place at the time of such imprisonment.*

If any person who is summoned as a trustee in his own right, shall die before the judgment, if any, recovered by the plaintiff, shall be fully satisfied, the goods, effects and credits in his hands at the time of the attachment, shall remain bound thereby, and his executors and administrators shall be liable therefor, in like manner as if the writ had originally been served on them. If the person so summoned shall die before judgment in the original suit, his executor or administrator may appear voluntarily, or may be cited to appear, in the same manner as is provided in the case of a common defendant in a common action; and the further proceedings shall then be conducted in the same manner as if the executor or administrator had been originally summoned as a trustee, except that the examination of the deceased, if any had been taken and filed, shall have the same effect as if he were living. If in such case, the executor or administrator shall not appear, the plaintiff, instead of suggesting the death of the testator or intestate,

121 Pick. 250.

2Act of 1848, ch. 59.

3R. S. ch. 115, sec. 120.
*Act of 1848, ch. 80.

may take judgment against him by default or otherwise, as if he were living, and the same proceedings shall, in such case, be had, as if the executor or administrator had himself been adjudged trustee. If the executor or administrator be discharged upon scire facias, he may recover costs or not at the discretion of the court.'

If any action or suit be brought by an unmarried woman, either alone or jointly with others, and she be married before final judgment, her husband may, on his own motion, be admitted as a party to prosecute the suit with her, and with the other plaintiffs, if there be any, in like manner as if he had originally joined in the suit."

If during the pendency of any action, either party shall become insane, the action may be prosecuted or defended by his guardian, in like manner as if it had been commenced after the appointment of the guardian; or the court may appoint a guardian for the suit, as the case may require."

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When an action shall have been brought against any person, if he, upon his own application, shall have been declared bankrupt by a decree of the District Court of the United States, during the pendency of said action, neither he nor his assignee shall be entitled to recover costs in said action; nor in any action, where the defendant shall rely upon his certificate of discharge in bankruptcy as a matter of defence, and where the said certificate was obtained after the commencement of the suit, shall such defendant recover costs against the plaintiff till after the said certificate shall be obtained, pleaded and produced in court.*

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Every justice may adjourn his court in all cases, civil or criminal, on trial before him, to any other time or place, as occasion shall require.

It is the practice, in some of the counties of this state, to make the writs returnable on the Saturday of each week, and to continue as a matter of course to the Saturday of the next week, if the defendant

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