Clough v. Clough
Superior Court of New Hampshire
Assumpsit on an account annexed to the writ, for the labor of the plaintiff for sixteen months, to the sixth of August, 1849. Plea, the general issue, with a brief statement of a tender before action brought, but without alleging therein that the defendant has always been ready to pay the sum tendered since the time of the tender, stating, however, that the defendant brings the same into court and deposits it with the clerk for the plaintiff, if he will receive it.
Read the full summary
Assumpsit on an account annexed to the writ, for the labor of the plaintiff for sixteen months, to the sixth of August, 1849. Plea, the general issue, with a brief statement of a tender before action brought, but without alleging therein that the defendant has always been ready to pay the sum tendered since the time of the tender, stating, however, that the defendant brings the same into court and deposits it with the clerk for the plaintiff, if he will receive it. The money was deposited with the clerk when the plea was filed, and was subsequently taken by the plaintiff. The brief statement…
1Opinion of the CourtGilchrist, C. J.
If we test the brief statement by the rules which regulate a plea of a tender, it will be found to be informal, for it is not averred that the defendant was always ready and willing to pay the money. The defendant must be always ready to pay, and state that circumstance in his plea of tender. It is not sufficient to state that the defendant is and always has been ready to pay, but he must also say that he tendered and offered to pay. Birles v. Trippet, 1 Saund. 33, note 2. The plea must show that the defendant has always been ready to pay the money from the time when it first became due. Hume…
2Cases cited1 opinion
- Jewett v. DavisSuperior Court of New Hampshire · 1834
3Cited by2 opinions
- Caldwell v. YeatmanSupreme Court of New Hampshire · 1940
- Piper v. Boston & Maine RailroadSupreme Court of New Hampshire · 1909