Statute of Limita- • Mat Phillips, 151. Lambe, 294. court within six years, and that the defendant Ch.II. f.3. removed it by Habeas Corpus'; or that he obtained a judgment or an outlawry in an original within that time, which has since been arrested or reversed, and that he commenced thews v. the present action within a year after the reversal. So if a man commence an action and die; or a feme sole, after the commencement of an action by her, marry, whereby it abates the executor or administrator in the one case, and the husband and wife in the other, have a reasonable time (which is generally understood to be a year) to commence a fresh action, and may reply the fact to a plea of the statute. The defendant may, by his rejoinder, of course, Phillips, deny any of the facts so stated, and the issue will lie on the plaintiff to prove them, either by proof of the matter of record in the usual way, where that is traversed, or by proof of the 259, note matter in pais, before a Jury, where such matter is put in issue. Where the plaintiff would excuse himself for not commencing his action in time, by reason of his being under any of the disabilities mentioned in the statute, such disability must be specially stated in the replication, and it must be added, that the action was commenced within six years after the removal of it; and, if the disability be traversed, the plaintiff must prove the existence and continuance of it. The Whitwick v. Hoven den, 3Lev. 345. Mat thews v. ut sup. 4 Forbes v. Lord Mid dleton, Willes, E. Part II. The Plea of Tender goes only to defeat the Tender. plaintiff's right to costs, and therefore the defendant who pleads it, is always obliged to pay into Court, for the use of the plaintiff, as much as he admits to be due; and cannot plead the general issue, to the same part of the declaration as that to which he applies his tender; but can only plead a tender as to part of the damages, and the general issue as to the residue.' The plaintiff may traverse both the tender and the general issue, and then it will be incumbent on him to prove that the defendant was indebted to him in a larger sum than he admits, and on the defendant to prove his tender. If the plaintiff fail on the first issue, the tender will be the only matter in dispute, and, to support this, the defendant must prove, that he offered to pay the money, and had it with him to pay. If the plaintiff make no objection to receive it, the defendant should put it down for him, for holding it in a bag under his arm is not sufficient; but if the plaintiff refuse to receive the money tendered, contending that more is due, he cannot afterwards object to the formality of the tender. Thus though a person must regularly tender money, and not Bank notes,' and the exact sum without asking for change, or a receipt; yet, if when such informal tender is made, the creditor does not object to receive it on that account, but on account of more being due, he Tender. will not afterwards be permitted to object to it Ch. II. f.3. on the trial. But in all cases it should appear either that some money was produced, or that See the the creditor expressly said he would not receive it." preceding Cases. * Dickin son v.Shee, 4 Esp. Cas. 67 Hart, Salk: But these are not the only replications that may be made to this plea; the plaintiff may reply a special demand by him, and refusal by the defendant to pay at any time, either before 3 Giles v. or subsequent to the time of the tender,' for if the defendant has ever refused to pay the money, his tender will not avail him. If this demand and refusal be traversed, the issue will of course be on the plaintiff to prove it. 622. Ld. Ray. 254 S.C. Johnson v. Mapletoft, 1 Lutw. 227. If the tender were, in point of fact, made after the commencement of the action, but before the exhibiting the bill, the plaintiff may in this, as in the former instances, shew the actual commencement of his action, by stating the writ in his replication; and the defendant may rejoin that there was then no cause of action,*Wood v. or, that he tendered before the day on which 1 Wils. the writ was sued out. On the first rejoinder 141. it will be incumbent on the plaintiff to prove the time when the cause of action accrued; on the other, the defendant must shew the day on which he made his tender. I shall mention two defences more, which may be either specially pleaded in bar, or given in evidence on the general issue, and these are the infancy or coverture of the defendant at the time of the contract; but if a promise be made S at Newton, Part II. at the time a woman is sole, and she marry Infancy. afterwards, this must be pleaded in abatement. v. Carru To the plea of Infancy, the plaintiff may reply, first, by denying the infancy. Secondly, That the defendant ratified the promises after he came of age. Lastly, That the things furnished were necessary for his degree. If the defendant give his infancy in evidence on the general issue, the plaintiff may prove either of these three facts in reply. In the two first cases it is sufficient for the plaintiff, in the first instance, to prove a proBorthwick mise; and it is incumbent on the defendant to thers, 1 T. shew the time of his birth, for this fact cannot Rep. 648. be supposed to be in the knowledge of the plaintiff; but if, on a replication of a ratification after age, the defendant establish his nonage, at the time of the original contract, it is then incumbent on the plaintiff to prove an express promise to pay after he attained his age. A bare acknowledgment of the debt is not sufficient in this case, as in the case of the Statute of Limitations, for the law protects an infant, and implies no proThrupp v. mise further than for those things which are Lara v. H. T. 31 Fielder, 1 Green v. M. S. Esp. necessary for his support. In this case, there628. S. C. fore, the payment of part of the debt after age, without any promise to pay the remainder, will not bind him to do so; and if he promise to pay a part of the debt, it will bind him so far and no farther.* Parker, Foster, J. To 2 Infancy. Vide B. N.P. 154 2 lb. 155Scott. Nelson, M.S. B. N. P. 155. S.P. 4 Hande v. Slaney, 8T. Rep. 578. s Ibid. Green ▾ Parker, WhittingHill, Cro. J. 494. Whywall v. Champion,2 Str. ham v. To support the replication of necessaries, Ch. II. f.3. the plaintiff must prove, the station and condition in life of the defendant, and that the things furnished for him were suitable and agreeable to that station. Every infant is chargeable for necessary victuals and cloathing for himself, his wife, or lawful child;3. and one bearing a captain's commission in the army has been held liable for a livery provided by his orders for his servant, for this is equally necessary for the honor and credit of his station. But as the law acknowledges no discretion in an infant, it will not permit him to be charged by any sup. contract not absolutely necessary for his existence; and, therefore, for cockades found for the soldiers, by order of the defendant in the last case, he was held not to be liable. goods provided him to sell again, kept an open and public shop, an been held not to be liable, for he has discretion to carry on business; and even money lent him to purchase necessaries, unless actually so applied by him, is not recoverable; and no action can be maintained against him on an account stated, though the particulars of such account were for necessaries. On the part of the defendant, on this issue, Emery, it may be shewn, that he was provided by his parents or friends with things necessary for his condition; and, if that appear to be the case, whether known to the plaintiff or not, it is the bounden duty of a Jury, though oftentimes unwillingly 12 8 So for though he 1083. But Mr. B. infant has Clarke, in not one case, 7 held other 154. wise, vide B. N. P. 7B. N. P. Trueman v. Hurst, 154. 1 T. Rep. 40. Bartlet v. ib. 42, n. |