Definition
"Always and still ready." A Norman-French plea name denoting the defense by which a defendant in a debt or contract action asserted that he had been, at all times before suit and remained at the time of pleading, ready and willing to pay or perform the obligation claimed against him. The phrase functioned as the formal title of the plea of tender — the procedural mechanism by which a defendant demonstrated not merely past willingness to pay but continuing present readiness, distinguishing his position from one of mere past offer that had lapsed.
Common Language
This term has no counterpart in modern ordinary English. The French phrase translates literally as "always and still ready," and the words are individually comprehensible to any French speaker, but the phrase as a legal term of art has no life outside the common law pleading tradition. Omitted from Wiktionary and Webster's 1913 as a standalone entry. No meaningful gap between common and legal meaning exists here — there is simply no common usage to compare against.
Common Confusion
TOUJOURS ET ENCORE PRESZ and TOUT TEMPS PRIST are variant expressions for the same underlying plea. Rapalje & Lawrence treat them as synonymous, with TOUT TEMPS PRIST identified as the more standardized Norman-French form and TOUJOURS ET ENCORE PRESZ as an older variant name for the same defense. Researchers encountering either form in historical pleading records are looking at the same legal doctrine. Neither should be confused with a general denial or a plea of payment (solutio), which assert different facts: the plea of tender concedes that the debt exists but contests the plaintiff's right to sue by asserting that the defendant offered performance before suit was brought and remains willing to perform.
Why It Matters in Research
This term appears almost exclusively in pre-nineteenth-century common law pleading materials, Year Books, and treatises on the forms of action. Researchers working in the Law Mind corpus should be aware of several navigational points.
First, variant spellings are numerous. Norman-French legal vocabulary was never orthographically standardized, and the same plea may appear as TOUJOURS ET ENCORE PREST, TOUJOURS PRIST, or in Anglicized hybrid forms depending on the manuscript tradition or the period of the source. A corpus search on any single spelling will undercount occurrences.
Second, the functional doctrine — tender before suit — survived the abolition of the forms of action and continues in modern procedural law under the label "plea of tender" or simply "tender." The Norman-French name dropped away in the nineteenth century. Researchers tracing the modern tender doctrine back through primary sources will encounter this term as a barrier once they pass behind the procedural reform era.
Third, the plea had specific technical requirements that matter for reading older case reports correctly: the defendant was required to bring the tendered sum or thing into court (the "keeping the tender good" requirement), and failure to do so defeated the plea. A source that discusses the plea without this element may be describing a defective or failed plea rather than the standard form.
Fourth, this term connects to the broader system of common law pleading and the special pleas in bar — a body of doctrine that is easy to misread if a researcher approaches it without grounding in the plea forms. The plea of tender sits in the same family as confession and avoidance.
Historical Dictionary Support
Rapalje & Lawrence provide the core identification: "Always and still ready. The old name of a plea of tender," followed immediately by a cross-reference note equating it with TOUT TEMPS PRIST as the Norman-French variant. The entry is brief to the point of terseness, which is characteristic of this dictionary's treatment of archaic Norman-French pleading terms — it identifies and translates but does not explain the doctrine.
What the historical dictionaries miss is the practical operation of the plea: the requirement that tender be kept good throughout the litigation, the effect on costs, and the distinction between tender of the exact sum (which was required) versus a larger sum. These gaps are significant. A researcher relying solely on Rapalje & Lawrence for this term would know what it is called but not how it worked or why courts cared about the distinction between this plea and a plea of payment.
Older pleading treatises — Gould on Pleading, Stephen on Pleading, Chitty's Pleading — address the tender doctrine substantively under English and American common law and should be consulted alongside dictionary sources for any research that goes beyond identification of the term.
Jurisdictional Note
The plea and its Norman-French label appear in both English and early American common law pleading practice. American jurisdictions adopted the tender doctrine from English precedent, though the name fell out of use more rapidly in American materials. The doctrine survives in modern American procedural law but under entirely different terminology.