29 N.C. 201 | N.C. | 1847
We concur with his Honor upon both points. In general, all pleas relate to the bringing of the action and are answers to the plaintiff's claim as it then exists. The plea of tender is no exception to the rule. It admits the cause of action and is a bar to its prosecution, because before its commencement the defendant had tendered to the plaintiff the money due him. This is shown by the form of the plea. In it the defendant avers "as to the said sum of $... and beforethe commencement of the suit, to wit, on, etc., aforesaid, etc." If this allegation is omitted, the plea is demurrable. Where the tender has been made at the proper time with an uncore prist, the defendant has a right to bring the money into court, because it constitutes a part of his plea; for the defendant must aver his readiness to pay the money admitted to be due, and that he hath paid the same into court, or that he now brings the same into court here ready to be paid to the said plaintiff, if he will accept the same, as the case may be. 3 Chit. Pl., 921. In Haughton v. Leary,
PER CURIAM. No error.
Cited: Winningham v. Redding,
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