318 plea of the Statute of Limitations in an unverified answer to a complaint of foreclosure of a mortgage is properly stricken out as sham, where it appears from the copies of the notes and mortgage set out in the complaint that the action was commenced within four years after the maturity of the note.3 The Statute of Limitations to be available as a bar to the prosecution of a writ of error in the Supreme Court must be specially interposed at a preliminary stage of the proceeding, and before issue joined upon the merits, and if the protection of the statute be not thus invoked by the party entitled to it, it will be deemed waived.319 The courts will in some cases allow the Statute of Limitations to be set up by amendment.3 And where the nature of the answer interposed to a complaint and the proof thereunder clearly indicate that it was the intention of the defendant to plead a three years' Statute of Limitations as a bar, and by a mistake the defendant in pleading such statute had specified two years instead of three, it is not an abuse of discretion for the court, after the hearing of the cause, to allow an amendment correcting the mistake, athough the equities of the case may be in favor of the plaintiff.321 320 ......... 18... at The defendant answers to the complaint: I. That on the ........ day of ..... before the commencement of this action, he tendered to the plaintiff. gold and silver coin of the United States], in payment of the contract, note, or indebtedness] in the complaint set forth. dollars [in II. That the defendant has always been and still is ready and willing to pay the same to the plaintiff, and now pays the same into this court [or state the facts]. § 3332. Plea of tender, how made, and effect of. Payment, tender, and readiness to pay are affirmative pleas, and cast the burden of proof on the defendant.322 And the plea of ten 318 Bank of Shasta v. Boyd, 99 Cal. 604. 319 Haley v. Elliott, 20 Col. 199. 320 See Gormeley v. Bunyan, 138 U. S. 623. 321 Morgan v. Morgan, 10 Wash. St. 99. 322 North Penn. Railroad v. Adams, 54 Penn. St. 94; 93 Am. Dec. 677; and see Halpin v. Insurance Co., 118 N. Y. 165. der must be specially stated;323 and that the defendant has always been and still is ready to pay the sum tendered, and the money must be brought into court.324 And it is essential in setting up tender to aver that the money has been actually brought into court.325 Where the defendant pleads tender before suit, and pays the amount of his tender into court, and the plaintiff fails to show himself entitled to a larger sum, it is proper to render judgment for the defendant for his costs, and in favor of the plaintiff for the amount due at the time of the tender.328 In such case the plaintiff shall not recover costs, but shall pay the costs of suit to the defendant.327 A tender does not extinguish or satisfy the obligation, and an offer to comply with the demand of judgment does not amount to a satisfaction thereof.328 Actual production and offer of money to creditor is necessary to a valid tender;329 and it must be unconditional; if receipt or satisfaction-piece be asked for, it vitiates it.330 So, an offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property.331 In an action by a landlord against a tenant to recover possession of property for failure to pay rent, a plea of tender by the defendant is insufficient under Washington Code of 1881, section 548, unless it alleges that the defendant offered to pay interest on 323 Bryan v. Maume, 28 Cal. 238; Duff v. Fisher, 15 id. 375; Hegler v. Eddy, 53 Cal. 597. 324 Bryan v. Maume, 28 Cal. 238; and see Henderson v. Cass County, 107 Mo. 50; Levan v. Sternfeld, 55 N. J. L. 41. 325 Hill v. Place, 5 Abb. Pr. (N. S.) 18. As to this defense generally, see Wilder v. Seelye, 8 Barb. 408; People v. Banker's Adm'r, etc., 8 How. Pr. 258; Livingston v. Harrison, 2 E. D. Smith, 197; Brickett v. Wallace, 98 Mass. 528; Grover v. Smith, 165 id. 132. 326 Curiac v. Abadie, 25 Cal. 502; Logue v. Gillick, 1 E. D. Smith, 398. 327 Cal. Code Civ. Pro., § 1030. 328 Redington v. Chase, 34 Cal. 666. Legal effect of plea of tender, See Ditch Co. v. Elliott, 10 Col. 327; 3 Am. St. Rep. 586; Insurance Co. v. Readinger, 28 Neb. 587. 329 Strong v. Blake, 46 Barb. 227. 330 Roosevelt v. Bull's Head Bank, 45 Barb. 579; but see Cal. Code Civ. Pro., § 2075, which provides that a receipt properly signed may be demanded as a condition of the payment or delivery. 331 Cal. Code Civ. Pro., § 2074. the rent due, or that he brings into court the amount of rent in arrear, with interest and costs of action.332 A plea of tender never goes to the whole of the plaintiff's demand, but is an admission to the extent of the amount tendered, and is a denial only of the balance of the plaintiff's claim.333 The plea, if defective, should be demurred to.334 § 3333. Issue joined. Where the plaintiff joins issue on such a plea, without questioning its sufficiency, he can not afterwards object that it was not duly filed, or that the money was not paid into court at the first term.335 If, by the laws of the United States, more than one kind of lawful money is a legal tender in payment of debts, and the plaintiff in an action is entitled to a judgment payable in a particular kind of money a plea of tender which avers the tender to have been made in lawful money of the United States is insufficient. The plea should aver that the tender was made in the kind of money the plaintiff is entitled to receive.386 The Legal Tender Act is held constitutional.337 It is competent for the state legislature to enact that all tolls, dockage and wharfage charges payable into the public treasury shall be due and collectible exclusively in gold and silver money of the United States.338 § 3334. Payment as to part, and tender as to residue. [TITLE.] Form No. 746. The defendant answers to the complaint: I. [Allege payment of part.] day of 18.., at he tendered to the plaintiff the residue of said claim, to-wit, the amount of dollars, etc. [as in preceding form]. 332 Ralph v. Lomer, 3 Wash. St. 401. Insufficient tender of purchase price of land by lessee under a lease giving him the privilege of purchasing the demised premises at any time during the term. See Heine v. Treadwell, 72 Cal. 217. 333 Gardner v. Black, 98 Ala. 638. 836 Magraw v. McGlynn, 26 Cal. 428. 837 Belloc v. Davis, 38 Cal. 254, and cases cited. 838 People v. Steamer America, 34 Cal. 676. 3335. Denial as to part, and tender as to residue. [TITLE.] Form No. 747. The defendant answers to the complaint: I. That he agreed to pay to the plaintiff dollars only [or that the goods or services mentioned therein were The defendant answers to the complaint: I. That the plaintiff was not, at the commencement of this action, and is not now a citizen of the United States, but was and is an alien, born in out of the allegiance of the United States, and within the kingdom of II. That at the commencement of this action the government of said was and still is at war with and .... is an enemy of the United States. III. That the plaintiff then was and still is an alien enemy, abiding without the United States, and at The defendant answers to the complaint: That before the commencement of this action, on or about the ..... ... day of .... 18.., at the plaintiff duly assigned the subject-matter and cause of action set forth in the complaint to one R. S., who then was and has been ever since the holder thereof. 339 This form is sustained by Bell v. Chapman, 10 Johns. 182. The disability only continues during the war. Hammersley v. Lambert, 2 Johns. Ch. 508. Residence within the United States presumptively defeats the plea. Clark v. Morey, 10 Johns. 69. Where an allen commences action in time of peace, it is competent on a declaration of war with the country of his domicile to interpose this plea. Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105. does not.342 An answer setting up that § 3338. Essential allegations. another party than the plaintiff is the real party in interest, should allege facts which would show as a matter of law that another person should have brought the suit.340 An answer should allege the facts, showing why the plaintiff is not a real party in interest.841 But it is not necessarily frivolous if it The answer is not frivolous for neglecting to name the assignee, or designating him as John Doe.343 If it appears by the pleadings that the assignment was in trust, it should be also alleged that the assignee accepted it.344 Α plea entirely addressed to the right to recover of a third person for whose use the suit is brought is bad on demurrer.345 So, on the ground that the title of the plaintiff is merely colorable.346 A plea to the jurisdiction on the ground that a demand has been colorably assigned, in order to evade a discharge under the Insolvent Law, is not to be treated as dilatory and captious.347 The objection that the plaintiff is not the real party in interest must be set up in the answer, to enable defendant to rely upon it, or it will be unavailing on the trial, even if the fact should appear from the examination of witnesses.348 But if it appear from the face of the complaint that defendant is not the real or true party plaintiff, then the objection should be made by demurrer. § 3339. Substitution of assignee. It is optional with the court, on death of plaintiff, in case of a transfer of his interest, to allow assignee of plaintiff's interest to be substituted, and the action to continue in his name. 349 Upon the death of 340 Raymond v. Pritchard, 24 Ind. 318. 341 Russell v. Clapp, 7 Barb. 482; Fosdick v. Groff, 22 How. Pr. 158. 342 Tamisler v. Cassard, 17 Abb. Pr. 187. 343 Smith v. Mead, 14 Abb. Pr. 262; Metropolitan Bank v. Lord, 1 id. 185. 344 Whitlock v. Fiske, 3 Edw. 131. 345 Sydam v. Cannon, 1 Houst. 431. 346 Boyreau v. Campbell, 1 McAll. 119. 347 Wallace v. Clark, 3 Woodb. & M. 357. 348 Jackson v. Whedon, 1 E. D. Smith, 141; Savage v. Corn Exchange, etc., Ins. Co., 4 Bosw. 1; but see Swift v. Swift, 46 Cal. 266. 349 Barstow v. Newman, 34 Cal. 90; Sheldon v. Havens, 7 How. Pr. 268; Harris v. Bennett, 1 Code R. (N. S.) 203; Murray v. Genesee Mut. Ins. Co., 2 Duer, 607; Ford v. David, 1 Bosw. 571; Howard v. Tay |