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2. A debt barred by the statute of limitations cannot be set off. If such debt be pleaded in bar to the action, the plaintiff may reply the statute of limitationsf.
3. Where either of the debts accrues by reason of a penalty, the debt intended to be set off must be pleaded in bar, and the defendant in his plea must aver what is really due5.
4. The court under the statutes of set-off can take notice of an interest at lawh only. Under the operation of the new rules, a set-off must now be pleaded specially', and cannot as formerly be given in evidence under a notice of set-off.
By R. G.T.T. 1 W. 4. No. 6, particulars (if any) of defendant's set-off shall be annexed by plaintiff's attorney to record at the time it is entered with judge's marshal.
An insurance broker is only entitled to receive for the assured, from the underwriter, a payment in money: hence in the settlement of a particular loss, a custom to set off the general balance due from the broker to the underwriter cannot be supportedk. The averment of what is really due, in cases where the debt accrues by reason of a penalty, has been holden to be traversabled. If an agreement is entered into for the performance of covenants, with a penalty, and the covenants are broken, the penalty cannot be set off: To assumpsit for money lentm, the defendant pleaded articles of agreement with mutual covenants in a penalty for performance, and shewed a breach whereby the penalty became due, and offered to set off the same; on demurrer, the court held this plea not within the
f Remington v. Stevens, Str. 1271. i Graham v. Partridge, 1 M. and W. g Stat. 8 Geo. 2.c 21. s. 5.
(Ex ) 395. h Per Littledale, J. (denying the au- k Todd v. Reid, 4 B. and A. 210.
thority of Bottomley v. Brook, I T. R. | Symmons v. Knox, 3 T. R. 65. 622) in Tucker v. Tucker, 4 B. and in Nedriff v. Hogan, 2 Burr. 1024, and Ad. 751.
Bull. N. P. 180.
covenant by plaintiffs as executors*, for rent arrear in the lifetime of testator, and also since his death, the defendant at the trial before Lord Mansfield, at the sitting after Easter term, 25 Geo. 3. set off a debt due from the testator to him; and the plaintiffs were nonsuited. Erskine moved for a new trial, on the ground that this debt could not be set off in this case, and cited Shipman v. Thompson, Bull. N. P. 180, Kilvington, executor, v. Stevenson, from a MS. of Yates, J., and Ridout and another, assignees, v. Brough, Cowp. 133. Lord Mansfield, C. J. said, that he was satisfied on the point on the authority of Kilvington v. Stevenson, and made the rule absolute.
Teggetmeyer and another, executors, v. Lumley, B. R. T. 25 Q. 3. reported in Durnford's note to Hutchinson v. Sturges, Willes, 264.
statute; Lord Mansfield, C. J. observing, that it was contrary to the intention of the acts, that the penalty should be admitted to be set off, when perhaps a very small sum was due for such damages as the defendant had actually sustained. A set-off reducing the plaintiff's demand under 40s. will not affect the jurisdiction of the superior court, so as to entitle the defendant to enter a suggestion on the roll, in order to obtain costs, either under stat. 3 Jac. 1. c. 15, s. 49. or under stat. 23 G. 2. c. 33. s. 19o. if it appear that a sum exceeding 40s. was due at the time of action brought (82).
7. Tender.—To an action of assumpsit the defendant may plead non-assumpsit as to part of the plaintiff's demand, and a tender before the commencement of the plaintiff's suit as to the rest; but the defendant will not be permitted to plead non assumpsit to the whole declaration, and a tender as to partP; because, if the general issue should be found for the defendant, it would then appear on the record, that nothing was due, although the defendant by his plea of tender had admitted something to be due. A tender may be pleaded to a quantum meruit, although the demand is uncertain. Johnson v. Lancaster, Str. 576.
n Pitts v. Carpenter, Str. 1191. and i
Wils. 19 o Gross v. Fisher, 3 Wils. 48. p Dowgall v. Bowman, C. B. M. 11
Geo. 3. 3 Wils. 145. and 2 Bl. Rep. 723. Anon. C. B. M. 40 Geo. 3. MSS. Maclellan v. Howard, 4 T. R. 194. S. P.
(82) The language of the two statutes is different. By the statute of James, if it appear to the judge that the debt to be recovered does not amount to 40s. the defendant shall have costs. By the statute of George, the defendant shall recover double costs, if the jury, upon the trial of the cause, find the damages for the plaintiff under 40s. unless the judge certify that 1. the freehold, or 2. the title of the plaintiff's land, or 3. an act of bankruptcy, principally came in question. It does not appear that the court in Gross v. Fisher adverted to this differ
N. Under the Court of Request's Act, for Southwark, 22 G. 2. c. 47. s. 6. if the debt which was originally above 40s. be reduced below 40s. by part-payment before action brought, the defendant will be permitted to enter a suggestion. Clark v. Askew, 8 East, 28. So under the London Court of Requests' Act, if the debt be reduced by part-payment below 51. before action brought, the defendant will be permitted to enter a suggestion. Horn v. Hughes, 8 East, 347.
What shall be a good Tender.-In order to sustain a plea of tender, it is not necessary in all cases to prove the actual production of money, in monies numbered; it will be sufficient to shew that the defendant was in a present condition to substantiate his offer , and that the plaintiff dispensed with the production of the money (83); but there must be either an actual offer of the money produced, or the production of it must be dispensed with by the express declaration or equivalent act of the creditor. If a man tender more than he ought to pay, it is good, for omne majus continet in se minus, and the other ought to accept so much of it as is due to him Hence, proof of a tender of 201. 9s. 6d. in bank notes and silver was holden P sufficient to support a plea of tender of 201. To an action of assumpsit, the defendant pleaded a tender of 101.; the evidence was, that the defendant having been employed as attorney for the plaintiff, had in that character received for his use 10. in part payment, and on going from home for a time, left the 101. with his clerk there. Some time after the plaintiff called and demanded 161. 8s. 11d. which he said he supposed Evans had received; when the clerk told him that Evans was gone from home, and had left with him 101. to give to the plaintiff when he called. The plaintiff said he would not receive the 10l. nor any thing less than his whole demand. The clerk did not offer the 101. The court were of opinion the evidence was insufficient; Lord Ellenborough, C. J. observing, “ It is expressly stated, that the clerk did not offer the 101. He only talked about having
n Thomas v. Evans, 10 East, 101. Dean v. James, 4 B. and Ad. 547. o Third resolution in Wade's case, p Dean v. James, ub. sup.
5 Rep. 115 a, recognized per Cur. in q Thomas v. Evans, ante.
(83) Where there is a dispute as to the amount of the demand, the plaintiff
, by objecting to the quantum, may dispense with a tender of the specific sum ; there should, however, be an offer to pay by producing the money, unless the plaintiff dispenses with the tender, by expressly saying, that the defendant need not produce the money, for he would not accept it; for though the plaintiff might refuse the money at first, yet if he saw it produced, he might be induced to accept it. Per Kenyon, C. J. Middlesex Sittings, 4 Esp. N. P. C. 68. See also Finch v. Brook, 1 Bingham's New Cases, 253. "I take it to be clear beyond a doubt, that if the debtor tenders a larger sum than is due, and asks change, this will be a good tender, if the creditor does not object to it on that account, but only demands ' a larger sum. There is not any occasion to produce the money, if the creditor refuses to receive it on account of more being due.” Per Kenyon, C. J. Peake's N. P. C. 88.
had 101. left with him to give to the plaintiff when he called, without making any offer of it, which is not a tender in law.”
If A., B., and C., have a joint demand on D., and C. has a separate demand on D.', and D. offer A. to pay him both the debts, which A. refuses, without objecting to the form of the tender on account of his being entitled only to the joint demand; D. may plead this tender in bar of an action on the joint demand; but it ought to be pleaded as a tender to A., B., and C. A tender of foreign money, made current by royal proclamation, is equivalent to a tender of lawful money of Englands.
Defendant, being indebted to the plaintiff in 31. 108. produced to him a bl. bank-note, and desired him to take 31. 10s. out of that. It was holden, that it was not a good tender t. An offer to pay a sum of money with a condition that it shall be accepted as the whole balance due, when a larger sum is claimed, does not amount to a legal tender of the sum offered to be paid u. A tender of money to an agent authorized to receive payment, is a good tender to the creditor himself. It must be made y either to the creditor himself, or to an agent authorized to give a receipt for the debt.
By the last act giving to the Bank of England privileges, for a limited period, under conditions, viz. 3 & 4 W. 4. c. 98. s. 6. after the ist of August, 1834, a tender of Bank of England notes payable to bearer on demand is made a legal tender to the amount expressed in such notes for all sums above five pounds, on all occasions on which any tender of money may be legally made, so long as the Bank of England shall pay on demand their notes in legal coin. Provided, that no such notes shall be a legal tender by the Bank of England, or any branch bank thereof; but the Bank are not to be required to pay at any branch bank any notes not made specially payable at such branch bank; but the Bank of England shall satisfy at the bank all notes of the bank or of any branch thereof.
At what Time the Tender may be made.—The tender must be made before the commencement of the suit. The line being drawn at the commencement of the suit, steps taken by the plaintiff, in contemplation only of an action before tender made, will not deprive the defendant of the benefit of his tender, if such tender was made before the actual commencement of plaintiff's suit. Hence it is not any answer to a plea of tender before the exhibition of the plaintiff's bill?, that the plaintiff had before such tender retained an attorney, and instructed him to sue out a latitat against the defendant, and that the attorney had accordingly applied for such writ, before the tender, which writ was afterwards sued out.
r Douglas v. Patrick, 3 T. R. 683.
Le Blanc, J. See also Robinson v.
Cook, 6 Taunt. 336. u Evans v. Judkins, 4 Campb. 156.
x Goodland v. Blewitt, 1 Campb. 477.
See also Moffat v. Parsons, 5 Taunt.
307. y Per Parke, B. Kirton v. Braithwaite,
1 M. & W. (Ex.) 313.
Of the Form in which a Tender must be pleaded.—Where the money is due and payable immediately by the agreement", the party pleading a tender must shew that he was
always ready," from the time when the cause of action accrued (84). Hence to an action of indebitatus assumpsit b, where defendant pleaded that before the action, viz. on such a day, he tendered a certain sum of money, and that he was always afterwards ready, and then was ready: on demurrer, the plea was holden bad; for per cur. it is not enough that he was always ready since the tender; the money was due before, and the neglect of payment was a delay, a breach of contract, and a cause of action. So where to an action by the indorsee of a bill of exchange, the defendant pleaded, that after the expiration of the time appointed for the payment of the bill, and before action brought, he, the defendant, tendered the whole money then due upon the bill with interest, in respect of the damages sustained by the non-performance of the promise: and that he always, from the time of making the tender, had been, and still was, ready to pay, &c. On demurrer, the plea was holden bad: Lord Ellenborough, C. J. observing, that in Giles v. Hartis d, it was expressly decided, that an averment of tout temps prist was necessary in the plea of tender, and that it was one of those land-marks in pleading which ought not to be departed from. A plea that the defendant is ready, and has always been ready, with a profert in curia e, but not averring a tender, will be bad on general demurrer. 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
e French v. Watson, C. B. Wils. 74. f Giles v.
Hart, Salk. 622. and Carth. 413.
2 Briggs v. Calverly, 8 T. R. 629.
Ridge, Fort. 376.
(84) But where the agreement is to pay at a certain time, tender at that time“ and always ready,” is a good plea. Per Holt, C. J. in Giles v. Hart, Salk. 622.