Colby v. Stevens

38 N.H. 191

Opinion

Bell, «J.

It is said no evidence of tender was admissible under the general issue; and it is conceded that this is the general rule in eases pending in the higher courts.

The only statutory provision now in force on this subject is found in sec. 8 of ch. 187 of the Revised Statutes:

“ No special plea shall ever be required in any civil action, except a, plea of title to real estate before justices of the peace. Either party may give in evidence any matter in support or defence of the action, under the general issue, upon filing in court a brief statement thereof, within such time as the court may order.”

Before the passage of the Revised Statutes, the statute of December 31, 1828, sec. 5, was in force, which provided that “the defendant in any case triable before a justice of the peace, may give any special matter in evidence under the general issue, except such as may bring the title of real estate in question.” And this statute is but a reenactment of statutes long before in force.

A statute passed July 2,1831, provides that “ in all civil actions the defendant may plead the general issue, which shall be' joined by the plaintiff, and either party may give in evidence any special matter in support or defence of the action, upon filing in the court a brief statement of such special matter, either of law or fact.”

This statute, it will be perceived, is expressed in such general terms as to apply in all civil actions. In 1836 the question was raised in the case of Foster v. Leavitt, 8 N. H. 353, whether this statute did not apply to cases pending before justices of the peace, so as to render a brief statement necessary to allow the introduction of any special matter of defence; and it was then decided that the statute of 1831 was passed to abolish special pleading in the higher courts, and never could have been intended to interfere with the provisions of the statute which regulated the proceedings before justices of the peace. “ There is nothing,” it was said by the court, “in the language used, that gives the slightest intimation of an intent to change the mode of proceeding there.”

The section of the Eevised Statutes on this subject is but a revision of the former statutes — the first clause substantially embracing the provision of the act of 1828, while the last follows almost verbatim the statute of 1831. Now it is a settled principle in the construction of statutes revising and consolidating previous enactments, that they are to receive the same construction in the revision which they had previously borne, unless there is such a change of the phraseology as clearly indicates an intention to change the operation and effect. Mooers v. Bunker, 29 N. H. (9 Fost.) 420; Burnham v. Stevens, 33 N. H. (2 Fogg) 247, and eases there cited. Here there is no change of phrase indicating any such intention, and the construction given, by an express reported decision, to the last clause of the statute of 1831, must be held to apply to the similar provision of the Eevised Statutes.

If no such decision had been made, we think the same considerations which led the court in 1836 to regard the statute of 1831 as not intended to affect proceedings before justices, would apply with greater force to the last clause of the section of the Eevised Statutes. It applies in terms to cases pending in courts, by which is perhaps generally to be understood the higher courts, particularly where the preceding sentence alludes, as it does here, to proceedings before justices of the peace.

2. The evidence of tender was sufficient. It is not necessary to show that the identical money tendered had been kept at all times ready to make good the tender. The form of the plea of tender is decisive on this point. It alleges that the party has been always ready to pay the debt, and on such a day he tendered and offered to pay it; and he brings the said sum into court. It is not averred that he has kept the same money, and brings it into court. 2 Chit. Pl. 431, 469, 601, 661; 2 Saund. PI. & Ev. 835. If a demand and refusal is replied, it is of the same sum, and not of the same money. 2 Ch. PI. 601, 661.

All that is necessary is to prove the tender made, and that he had the same sum in readiness to pay the debt, and brings the same sum into court.-

This question arose in the case of Curtiss v. Greenbanks, 24 Vt. (1 Dean) 536, cited by the defendant’s counsel; and it was decided that when money is tendered and refused, the person tendering' it is at liberty to use it as his own. All he is under obligation to do, is to be ready at all times to pay the debt in current money, when requested.

The exceptions are overruled, and the

Judgment affirmed.