Robinson et al. Ex’rs v. Gaines, Adm’r.
[Thursday, November 11th, 1802.]
Tender— Sufficiency of Plea. — As upon a plea of tender, the money must by law, accompany the plea, the defendant In a subsequent suit may plead the tender of the money into Court, in the first action, and prove the payment to the Clerk; which, if found in his favor, judgment will be entered for him.
Gaines, as administrator of Minor, brought debt in the County Court, against Robinson and others, executors of Michael Robinson, upon a bond, given by the said Michael, dated the 2d day of February, 1768, and payable on or before the 1st of June, afterwards. The defendants took oyer of the bond, and filed the following plea: ‘1 And the said defendants say, that heretofore, viz: the 5th day of July, in the year one thousand seven hundred and sixty-eight, in the life-time of the said Joseph Minor, and of the said Michael Robinson, their testator: the said Joseph Minor impleaded the said Michael Robinson in the Court of Spotsylvania, upon the bill obligatory, and for the same sum of money, mentioned in the now plaintiff’s declaration, in which suit such proceedings were had, that at a Court held for the said county in August, 1770, the said Michael plead a tender of the said debt, and did then and there tender into Court, and pay into the hands of the Clerk of the said Court, the principal and interest due thereon, amounting to the sum of , which has been always, and now is, as the§e defendants suppose, ready to be paid to the said Joseph Minor, or to the said plaintiffs, when demanded; and this they are ready to verify; ^wherefore, they pray judgment, whether the plaintiff, his action aforesaid, ought to have, or maintain, &c.” General replication, and issue. Upon the trial of the cause, the plaintiff filed a bill of exceptions to the Court’s opinion, stating, that he moved the Court ‘‘to instruct the jury, that unless they found that the costs, as well as the principal and interest which had accrued previous to the bringing the money into Court, had been brought in, they should find for the plaintiff; and also to disregard the parol testimony, introduced to prove the payment of the money into Court, inasmuch as it was not the best evidence that the nature of the case would have admitted of. This being a fact which should have been proven by record, and that there is no record but that filed in this cause, produced ; but that the Court refused to instruct the jury to this effect:” Verdict and judgment for the defendants: and the plaintiff appealed to the District Court; where the judgment of the County Court was reversed; the pleading subsequent to the declaration set aside; and the parties ordered to plead anew. In consequence of which, the defendants plead payment; and the plaintiff took issue. Upon the trial of the last issue, the defendants filed a bill of exceptions, stating, that thej'“offered parol testimony and depositions to prove that the defendants’ testator had, previous to the 5th of July, 1768, tendered, to the plaintiff’s intestate, the amount of the principal and interest, then due, on the bond in the declaration mentioned; and a copy of the record in the former cause (which is set forth in hsec verba, and states that, at August Court, 1768, oyer, and time to plead, were allowed the defendant: that, in August, 1769, further oyer and time to plead were allowed ;’ ’ and then the record proceeds thus: “At August Court, 1770, the defendant plead a tender of the plaintiff’s debt; and time, till the next Court, was allowed the plaintiff to consider thereof.” After which, it states, that in June, 1771, the plaintiff replied generally, *and that time was allowed the defendant. That, in July, 1773, issue was joined on the replication. That, in September, 1773, the cause was referred; but, the order of reference was set aside at the same term; and, in August, 1782, the suit abated by the death of the plaintiff. There are two memoranda, at.the foot of the record, made by the Clerk; the first is in these words: N. B. None of the pleas mentioned in these proceedings are filed in writing, nor is the sum of money tendered, mentioned on the records. The second is as follows : The writ, in this cause, is dated the fifth day of July, 1768). “To prove that, on that day, a suit was commenced by the plaintiffs’ intestate against the defendants’ testator, on the bond aforesaid, in which suit the plea of tender was pleaded, and issue taken thereon; and, by parol testimony, that upon the filing of said plea, the amount of the principal and interest, due when the said tender was made, was paid into Court, and received by the Clerk, and that the whole amount had been lost by the insolvency of the said Clerk. But, the said testimony being objected to by the plaintiff, the Court was of opinion that the said parol testimony was improper.” Verdict and judgment for the plaintiff; and the defendants appealed to this Court.
Randolph, for the appellant.
The evidence of the tender was admissible ; and, therefore, the District Court erred in excluding it.
Williams, contra.
This was not a motion to bring the money into Court, but an attempt to give evidence of whan passed, upon a former occasion of that kind. But, if it had been such a motion, there ought to have been a rule for that purpose; and principal, interest, and costs, ought to have been tendered. The defendant ought to have pleaded the tender, because the plaintiff would have had a right to take issue upon it. He could not take out the money under the former application. *It was not a tender under *502the act of Assembly; for, that expressly requires the principal, interest, and costs. Barrett & Co. v. Tazewell, 1 Call 21S. Pa-rol evidence was not admissible to add to, or explain a record; but, if otherwise, the nature of it ought to have been shewn.
Randolph, in reply.
The act of Assembly says, that the penalty shall be discharged by payment of the principal and interest; and, therefore, the costs are not necessary to be tendered. In general, a tender is matter in pais, and so pleaded: But, this was the case of money offered into Court; and, therefore, might be used, in evidence, as matter of record, without the plea. No rule of Court was necessary. The money was paid into the hands of the public functionary; and, as the plaintiff did not receive it, he ought to bear the loss. The parol evidence ought to have been received, as it was the best the nature of the case was susceptible of.
Cur. adv. vult.
PENDLETON, President,
delivered the opinion of the Court, as follows:
The question depends on the first judgment of the District Court, in October, 1796, reversing that of the County Court; since, if that reversed was right, there is no objection to the subsequent proceedings in the District Court. In the County Court, the defendant pleaded a former suit, which had been commenced by Minor, the testator of the plaintiff, against the testator of the defendants in the same County Court; in which suit, at a Court held for the said county, 'in August, 1770, Robinson pleaded a tender of the debt, now sued for; and did, then and there, tender into Court, and pay into the hands of the Clerk, .the principal and interest due thereon ; which the defendants suppose has been always, and now is ready, to be paid *to Minor, or the plaintiffs; and, upon this plea, the parties were at issue. On the trial of the cause, the defendants produced the record of the former suit, and offered parol testimony to prove that the money was actually paid to the Clerk, at the time of filing the plea; when the counsel for the plaintiff moved the Court to instruct the jury: 1. That, unless they found that the costs, as well as the principal and interest, had beep brought into Court, they should find for the plaintiff. 2. To disregard the parol testimony, introduced to prove the payment of the money into Court, this being a fact which should be proven by record. The Court refused so to instruct the jury, who found a verdict for the defendants, for whom a judgment was entered; and the question is, whether the Court ought to have given the instruction required? As to the first point, the costs, Mr. Randolph was right, upon the act of Assembly, that the costs were not required to be paid into Court; but, this is not a case within that act of Assembly, but a plea of a prior tender, accompanied by the money tendered ; and, therefore, we are only to consider of the propriety of admitting the parol testimony. By the law, a plea of tender is not to be received, without the money tendered, which must have been filed and paid into Court, where all the pleadings, at that day, were carried on. It is, therefore, to be presumed, prima facie, that the money accompanied the plea; especially, as the plaintiff did not demur to, but joined issue on the plea; and the Clerk having omitted to enter the payment, parol proof ought to be admitted, in aid of that presumption, since it does not tend to contradict the record, but to supply a defect, which the Clerk, either through mistake or design, omitted to enter; circumstances which, in this case, render the parol testimony admissible. Therefore, the’ judgment of the District Court, in October, 1796, and all subsequent proceedings in the said Court, are to be reversed, with costs; and this Court, proceeding to give such judgment, as the said District *Court ought to have given in October, 1796, the judgment of the County Court is affirmed, with costs.