
    Skipwith v. Morton & Company.
    [April Term, 1800.]
    Suit upon Bill of Exchange — Plea of Tender of Interest in Paper Money — Case at Bar. — If to a suit upon a bill of exchange dated in 1775, the defendant pleads that he tendered the interest in paper money without confessing- the action as to the principal or saying any thing in bar of it, the-plea is bad,
    •Same — Same—Plea of Payment — Evidence.—The defendant may give such tender in evidence to extinguish the interest on the plea of payment.
    Same — Same—Same—Withdrawal—Effect.— But if he withdraws the plea of payment he relinquishes the evidence.
    Same — Same—Demurrer.—And therefore if there be a demurrer to the plea of tender final judgment will be rendered for the plaintiff.
    Morton and company brought an action of debt against Skipwith in the District Court, upon a bill of exchange, for ^100 sterling dated June ISth 1775. The defendant plead payment, and the plaintiff took issue. On the next day on the motion of the defendant, he was allowed by the court to withdraw the plea of payment; and thereupon he filed the following plea, “James Morton & Co. for the benefit of Alexander Boyd plaintiff against Sir Peyton Skip-with defendant. And the said Skipwith comes and defends the force and injury when &c. and saith that the plaintiffs ought not to have or maintain their said action against him because he saith that he hath paid to the plaintiffs the debt in the declaration mentioned and this he is ready to verify. And the said Skipwith for farther plea saith according to the act of Assembly in that case made and provided, saith that the plaintiffs ought not to have or maintain their said action against him, because he saith that in the year of our Lord 177 a certain medium or kind of money called paper money was made, issued and established by act of General Assembly passed and enacted in the said year 177 which said paper money was by the said act of Assembly ^'declared to be a lawful tender in discharge of all debts contracted or due before that time. And that the said tender if refused should operate as an extinguishment of interest. And the said Skipwith in fact saith that on the sixth day of May in the year 1778, the said Skipwith did in pursuance of the said law tender and offer to pay to the plaintiffs the full amount of the debt, in the said declaration mentioned, together with interest after the rate of ten per centum per annum from the date of the bill of exchange mentioned in the declaration, and also the full charges of protest of the said bill in bills of the said medium or currency called paper money which was by law established as aforesaid. And the defendant farther avers that the said plaintiffs on the day and year aforesaid did refuse to receive or accept the said paper money in discharge of the said debt, interest and charges as aforesaid. Whereby by force of the said act of Assembly all right in the said plaintiffs to recover of the said Skipwith any interest on the debt in the declaration mentioned from the day of the said tender is forfeited: All which the said Skipwith is ready to verify, and therefore he prays judgment if the plaintiffs ought to have or maintain their said action thereof against him.” The cause was thereupon sent back to the rales for an issue to be made up therein.
    And at the rules the plaintiffs, as to the first plea of the said Skipwith in manner and form by him pleaded, replied that the said Skipwith had not paid the debt in the declaration mentioned; and as to the second plea, they demurred; and for causes stated, 1st. That the said second plea does not sufficiently set forth the act of General Assembly in the said plea mentioned, the time of making, nor the purport thereof. 2d. That the said second plea does not sufficiently set forth in what bills or species of paper medium the tender or offer of payment was made. 3d. That the said second plea does not shew that the defendant has always been ready, since the cause of action accrued *or ever since the time of making the pretended tender aforesaid, to pay, the debt and interest accruing before the time of making the tender and the charges of protest in the declaration mentioned, to the plaintiffs. 4th. That the said second plea does not aver and shew that the said defendant still is ready to pay to the plaintiffs the debt, interest and charges so by him pretended to have been tendered and offered. 5th. That the said defendant in his said second plea does not make a profert in' curia of the said debt, interest and charges that is over. 6th. That the said second plea is contradictory, that it states the act of Assembly aforesaid to extinguish interest from the time of making the tender, and also states that the plaintiffs right to recover interest, from the said defendant from the time of the pretended tender, is forfeited, yet begins by averring, that the plaintiffs ought not to maintain their action, and concludes by praying, whether the plaintiffs ought to have or maintain their action &c. 7th, and lastly. That the said second plea of the defendant is uncertain and wants form.
    The record then proceeds thus, “And at another dajr to wit, at a Court held for the District aforesaid the 29th day of April 1796 came the parties by their attornies and the plaintiffs demurrer to the defendants plea of tender was argued and it was considered by the Court that the plea and matters therein contained were not sufficient in law to bar the plaintiffs action and it was farther considered by the Court that the cause be continued till the next Court for the trial of the issue on the plea of payment.”
    “And at another day to wit at a Court held for the District aforesaid September 29, 1796 came the parties aforesaid by their attornies aforesaid and the attorney for the defendant relinquished the former plea of the said defendant. Therefore it is considered by the Court that the plaintiffs should recover against the said defendant three ^hundred and two pounds sixteen shillings sterling being the principal interest and charges of protest of the bill of exchange in the declaration mentioned together with interest thereon to be computed after the rate of five per centum per annum from this day to the time of payment and their costs by them about their suit in this behalf expended and the defendant in mercy &c. But the said sterling money may be discharged by twenty eight per cent difference of exchange. ”
    To this judgment Skipwith obtained an order from a judge of this court for a writ of supersedeas. The petition stated, that Moreton & Co. instituted an action of debt against the petitioner for ^100. sterling on a protested bill of exchange; that to this action the petitioner filed a plea of a tender of paper money; to which plea a demurrer having been filed, the said plea was overruled ; that the petitioner is advised, that, let the reasons assigned, in the said plea, be even valid, (which he in no manner admits) they are founded upon the principle of a tender at common law: Whereas the petitioner is advised, that under an act of the October session, 1787, when paper money was about to expire, he was at liberty to offer in evidence, any circumstances for the purpose of rendering a judgment more equitable in cases where the non payment was owing, as in this case, to the creditor; that this overruling of the said plea did in fact preclude the petitioner from offering that evidence.
    Randolph for the plaintiff
    in the superse-deas. Although the plea would be bad, upon mere common law principles, it is nevertheless sufficient under the acts of Assembly, passed in the years 1777 and 1781. Tor by the first, it is expressly declared that a tender and refusal shall operate an extinguishment of interest; and by the latter the Court in such case are to adjust the claim according to the principles of equity. The defendant x'therefore ought to have had an opportunity of proving the tender, and extinguishment of the interest; which he was prevented from doing, by the courts overruling the plea.
    Call contra.
    The plea unquestionably was not sustainable upon any principle of common law, Downman v. Downman’s executors, 1 Wash. 26; which case expressly overrules the plea; and it is therefore properly abandoned as a common law plea by the opposite counsel.
    Neither can it be supported upon the acts of Assembly. Because it is not an answer to the whole demand; since it merely offers a bar to the interest subsequent to the tender, and neither says or claims any thing, in bar of the principal debt and interest, prior to the tender. Tor the rules, laid down in Downman v. Downman’s exrs. not having been pursued, the tender itself was no bar to the debt, and interest prior to the time of making the tender. So that the plea is plainly a partial answer only to the demand, and therefore cannot be supported. Tor if a declaration demand /d00. and the plea is that the defendant has paid .£S0. without saying any thing as to the residue it is clearly bad. So if in trespass for damage done in two closes, the defendant justifies the trespass in one, without saying any thing as to the other, the plea is insufficient. The principles of these cases are all fully weighed and considered by the Court in the case of Baird v. Mat-tox ; in which it was determined, that if the defendant be sued both as heir and dev-isee, and pleads nothing by descent, without saying any thing as to the devise, that the plea is bad. Which case comes up to the present in all its parts; and proves beyond all contradiction, that the plea in this case was properly overruled.
    *The defendant, therefore, if he only meant to insist on an extin-guishment of the interest from the date of the tender, ought to have pleaded in the manner in which offsets are frequently plead in England, that is to say, he should in his plea have acknowledged the plaintiffs right of action, for the principal debt and interest to the day of the tender; and then gone on and stated the tender and consequent extinguishment of the future interest, under the act of Assembly : Which would have been an answer to the whole declaration, but having omitted to do so, his plea was ill; and therefore rightly overruled by the Court below._
    But if the defendant was entitled to any deduction, under the acts of Assembly he ought either to have given the circumstances in evidence, under the plea of payment (which he might do according to the decision of this Court in M’Call v. Turner;) or else he should have offered them to the Court, after the verdict was rendered. Having, however, declined all these modes, the fair presumption is, that he had no circumstances to offer, or tender to prove. But, if he had, he, as every other defendant, was bound to shew his circumstances, or plead his tender, according to the forms and manner prescribed by the law. Instead of this however he after-wards withdrew his plea of payment, and gave judgment for the amount of the plaintiffs demand ; thereb3 plainly shewing, that he had no circumstances to offer, or tender to prove; at the same time, that he shut the door against all exceptions to the proceedings ; because the confession of judgment was equal to a release of error, under the act of Jeoffails.
    Randolph in reply.
    If the defendant had plead generally to the whole demand, his defence would have been untrue ; and therefore the doctrine, contended for, goes to prove, that it is necessary for the defendant to plead an untruth, in order to avail himself of what is true. Although *the defendant might have given the tender in evidence, under the plea of payment, that did not preclude him from a right to plead it specially, if he chose to do so. No common law rules of pleading apply to the case of paper money; which stands upon its own bottom ; and all the decisions of the courts proceed on that idea. The withdrawing1 of the plea of payment did not alter the merits of the case, under the other plea; which admitted the residue of the demand, by omitting to answer it.
    Call contra.
    The last position does not satisfy the objection to the plea, on account of its offering only a partial answer, to the demand set forth in the declaration; because it makes the issue immaterial, and produces the necessity of a repleader; as happened in the case of Baird v. Mattox.
    Cur. adv. vult.
    
      
      
        \ Call’s Rep. 357.
    
    
      
      1 Call’s Reports p. 132.
    
   LYONS, Judge.

Delivered the resolution of the court, that the plea was clearly bad, in point of form; and therefore was very properly overruled by the District Court. That the defendant might have given the tender in evidence, under the plea of payment in order to have extinguished the interest, subsequent to the tender; but having omitted to do so, and having withdrawn his plea of payment, he had relinquished the evidence, and could not now be received to make an objection upon the ground of a right which he had voluntarily waived.

ROANE, Judge.

The last clause, in the act of 1781, appears applicable only to debts contracted during the existence of paper money; and not to such as this which existed long before.

Judgment Affirmed.  