Giles v. Hart, Selw. 143. Ibid. 144. 3 Bl. Com. 3:3. 1 Swif. Syst. L. C. 404. 5 Bac. Abr. 12. It is not necessary, that a plea of tender to an action of indebitatus assumpsit, should answer a special request laid in the declaration, on a day subsequent to the day on which the promise is laid; because such request is surplusage, and therefore the day on which it is made is wholly immaterial. It is a general rule, that a tender cannot be pleaded after any kind of imparlance, because the imparlance is contradictory to that part of defendant's plea, in which he alleges that he was always ready.(1) V. What may be replied to a plea of tender. To a plea of tender the plaintiff may reply a subsequent demand and refusal. VI. Consequences of a tender and refusal. A tender by the debtor, and refusal by the creditor, will, in all cases, discharge the costs, but not the debt itself; though, in some particular cases, the creditor will totally lose his money. Where contracts are made for the delivery of goods, or the performance of some duty, a tender, by one party, and refusal to accept by the other, discharges the contract. As if I promise to deliver a person so many horse's, on such a day, at a certain price, and I tender them accordingly, my promise is fulfilled, and the property of the horses vest in the person to whom they are tendered, and they are at his risque. In any case, however, where the debt or duty would not otherwise have been discharged by a tender and re (1) Where the contract is to pay articles to a certain amount of a general description, as articles of shop-work, it is necessary in a plea of tender, to point out, and of course, in the tender, to set out the particular articles, whereby they can be known and distinguished from others: for, if the tender be good, it is a bar to an action on the contract, and the articles vest in the person to whom they are tendered, and they ought to be identified, that he may know what articles belong to him. 1 Swif. Syst. L. C. 404. fusal, if the party to whom the tender has been made, take issue upon the tender, and it be found against him, the debt or duty is discharged; for it was at his peril to take an issue, by the finding of which his refusal has become matter of record. So, notwithstanding the party who, has made a tender of paying a debt or performing a duty, be not thereby discharged,of the debt or duty, although the other party refuse to accept thereof, he is, by the tender and refusal, discharged of the damages, to which he would otherwise have been liable, by reason of the non-payment of the debt, or the non-performance of the duty. Therefore if the money due upon a mortgage, carrying interest, be tendered to the mortgagee, and he refuse to accept thereof, the mortgagor is discharged of interest, from the time of making the tender. But a right to damages on account of the non-payment of a debt, or the non-performance of a duty, may, after being taken away by a tender and refusal, be restored by a demand subsequent to the tender and refusal for if the debt or duty be not discharged by the tender and refusal, a new right to the damages accrues, from the non-payment or the non-performance, upon the subsequent demand. Where a man would, upon doing a previous act, have acquired a right to a debt or duty, this is as completely acquired, if he make a tender of doing the previous act, and the other party refuse to suffer it to be done, as if it had been actually done. So every consequence which would have followed from a tender and refusal, will follow from being ready to tender; in case the person whose duty it was to be present at the place, where the tender was intended to have been made, neglected to be present. Ibid. Ibid. 13. Ibid. Ibid. 14. TITLE CXLIV. 4 Bl. Com. 75. Treason defined. 1bid. Distinction between high treason and petit treason. Stat. 1784, c. 69. Distinction between petit treason and norder annulled by statute. 4 Bl. Com. 120. Misprision of treason. TREASON AND MISPRISION OF TREASON. TREASON, proditio, in its very name, (which is borrowed from the French,) imports a betraying, treachery, or breach of faith. This is indeed the highest crime which can be committed against society, inasmuch as its object or its tendency is the destruction of government, without which society could not subsist. In England, treason is divided into two kinds; high and petit. High treason is where the king or his government is the object of the traitorous attack: petit treason is where a servant kills his master, or a wife her husband. These acts are deemed petit treasons, because they imply a breach of that private and domestic faith or allegiance, due from the inferior to the superior, in the relations above mentioned. The crime of petit treason has now, no existence in this commonwealth; for by statute, in all cases, wherein theretofore any person would have been deemed or taken to have committed the crime of petit treason, such person or persons shall be deemed and taken to have committed the crime of murder only, and indicted and prosecuted to final jndgment accordingly: and the same punishment only shall be inflicted as in the case of murder. Misprision of treason consists in the bare knowledge, and concealment of treason, without any degree of assent thereto for any assent makes the party a principal traitor; as indeed the concealment, which was construed aiding and abetting, did at the common law. But by statute it is provided, that concealment or keeping secret of any treason, be deemed and taken only Stat. 1777, s. 4. See 3 Vol. Laws, misprision of treason; and the offender therein shall forfeit, to the use of the state, all his goods and chattels, and the profits of his lands, during his life; and shall and may Thomas's Ed. be imprisoned for a term not less than two years, nor exceeding five years, at the discretion of the court, before whom he shall be convicted. And moreover, by the same statute, any person who shall know of any treason to be committed, (and is no party or consenter to it,) and shall not, within a reasonable time, give information thereof upon oath to one of the justices of the superior court of judicature, court of assize and general gaol delivery, or some justice of the peace within this state, to the end, the offender or offenders therein may be apprehended, and be amenable to justice; shall be taken and deemed to be guilty of misprision of treason, or concealment of treason. But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing, before hand, that a conspiracy is intended against the government; or, being in such company once by accident, and having heard such treasonable conspiracy, meets the same company again, and hears more of it, but conceals it; this is an implied assent, in law, and makes the concealer guilty of actual treason. 1. What persons are capable of committing treason. 2. Of what acts treason consists. 3. Of the time within which a prosecution for treason must be commenced. 4. Of the privileges of the prisoner. 5. Of the evidence. 6. Of the forfeitures consequent on a conviction of treason. 7. Of the punishment. I. What persons are capable of committing treason. Every subject, who is of the age of discretion, may be guilty of treason. Append. p. 220. Ibid. s. 5. 4 Bl. Com. 120. 5 Bac. Abr. 111. Stat. 1777. Ibid. s. 3. Ibid. s. 2. Zbid. s. 3. 4 Bl. Com. 81, 82. As treason involves a breach of that allegiance which every subject owes to the government which affords him protection, it necessarily follows, that no one can commit this crime but such as owe either a perpetual or temporary allegiance to the government. By statute, all persons abiding within this state and deriving protection from the laws of the same, owe allegiance to this state, and are members thereof. And all persons passing through, visiting, or making a temporary stay in this state, being entitled to, and actually receiving the protection of the laws, during the time of such visitation, or temporary stay, owe, during the same time, allegiance to this state. Persons of the above description are within the statute of treasons. So also are such persons as owe allegiance to any other of the United States, and who commit such acts as would be treasonable in a subject of this state. II. Of what acts treason consists. By the statute of 1777, all persons, members of, or owing allegiance to this state, who shall, within or without the limits of this state, levy war or conspire to levy war against this state, or against any other of the United States of America, &c. shall be adjudged guilty of treason against this state. Moreover, by the same statute, all persons owing allegiance to any other of the United States, who shall, within this state, levy war, or conspire to levy war, against this or any other of the said United States, &c. shall be adjudged guilty of treason against this state. "Levying war" is a phrase used in the English statute of treasons, 25 Edw. 3, c. 2; it is therefore to the construction which this statute has received, that we must resort for an interpretation of our own statute. A person may levy war by taking arms under pretence to reform religion or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. |