One taken on a point not proper to decide the
action; for example, if in an action of debt on bond, conditioned
for the payment of ten dollars and fifty cents at a certain day,
the defend ant pleads the payment of ten dollars according to the
form of the condition, and the plaintiff, instead of demurring,
tenders issue upon the payment, it is manifest that, whether this
issue be found for the plaintiff or the defendant, it will remain
equally uncertain whether the plaintiff is entitled to maintain his
action, or not; for, in an action for the penalty of a bond,
conditioned to pay a certain sum, the only material question is,
whether the exact sum were paid or not, and the question of
payment of a part is a question quite beside the legal merits. Hob.
113; 5 Taunt. 386.
Source: Bouviers Law Dictionary 1856 Edition
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