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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 4, the defendant pleaded a tender of 107.; the evidence was, that the defendant having been employed as attorney for the plaintiff, had in that character received for his use 107. in part payment, and on going from home for a time, left the 107. with his clerk there. Some time after the plaintiff called and demanded 167. 88. 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 10l. to give to the plaintiff when he called. The plaintiff said he would not receive the 107. nor any thing less than his whole demand. The clerk did not offer the 10l. 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 107. He only talked about having

n Thomas v. Evans, 10 East, 101.
o Third resolution in Wade's case,
5 Rep. 115 a, recognized per Cur. in

Dean v. James, 4 B. and Ad. 547. p Dean v. James, ub. sup. 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 107. 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 England s.

Defendant, being indebted to the plaintiff in 37. 10s. produced to him a 57. bank-note, and desired him to take 37. 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 ". A tender of money to an agent authorized to receive payment, is a good tender to the creditor himself. It must be made 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 1st 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

r Douglas v. Patrick, 3 T. R. 683. s 5 Rep. 114. b.

t Betterbee v. Davis, 3 Campb. 70 per 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.

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 2, 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.

Of the Form in which a Tender must be pleaded.—Where the money is due and payable immediately by the agreementa, 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, 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 curide, 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

z Briggs v. Calverly, 8 T. R. 629. a Giles v. Hartis, Ld. Raym. 254. b Sweatland v. Squire, Salk. 623. c Hume v. Peploe, 8 East, 168.

d Ld. Raym. 254. and vid. Wood v. Ridge, Fort. 376.

e French v. Watson, C. B. 2 Wils. 74. f Giles v. Hart, Salk. 622. and Carth. 413.

(84) But where the agreement is to pay at a certain time, tender at that time

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and always ready," is a good plea. Per Holt, C. J. in Giles v. Hart, Salk. 622.

promise is laid: because such request is surplusage, and therefore the day on which it is made is wholly immaterial.

Of the Replication. To a plea of tender the plaintiff may reply a subsequent demand and refusal.

The usual form of this replication is, that, "after the making of the tender mentioned in the plea, and before the commencement of the action, the plaintiff demanded the said sum, (the sum tendered,) but that the defendant refused to pay the same," &c. Issue being joined on the fact of this demand, it will be incumbent on the plaintiff to prove that he demanded the precise sum before tendered. Proof of a demand of a larger m sum than that which was originally tendered will not support the issue. The demand ought to be made by some person authorized to give the debtor a discharge. Hence in a case where the demand had been made by the clerk to the plaintiff's attorney", who had never seen the defendant before going upon this errand, Lord Ellenborough held the demand insufficient; admitting, however, that the demand by the attorney himself might have done. If to a plea the plaintiff reply a latitat (85), and that the tender was not made before the suing out the latitat, the defendant may rejoin, that plaintiff had not any cause of action

m Spybey v. Hide, 1 Campb. 181. Ld. Ellenborough, C. J. Rivers v. Griffiths, 5 B. and A. 630. S. P.

n Coles v. Bell, Sittings after M. T. 49.
Geo. 3. 1 Campb. 478. n.
o Wood v. Newton, B. R. 1 Wils. 141.

(85) Denison, J. doubted whether the replication of a latitat was good, because it was not material when the process issued. This was upon a supposition that the latitat was only process. 1 Wils. 148. Indeed when the issuing out of a latitat is not replied to the statute of limitations, or to avoid a tender, or given in evidence to support a penal action, it is considered but as process, and not as the commencement of the suit. Foster v. Bonner, Cowp. 454. It is in the election of the plaintiff to consider the memorandum, or the actual suing out of the writ, as the commencement of the suit; this is the rule, subject to the exception that in penal actions and in cases on the statute of limitations the defendant may always resort to the real time. Pugh v. Martin, 3 Doug. 347. But now by R. G. H. T. W. 4. No. 1. every pleading, as well as the declaration, shall be intitled of the day of the month and year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll, under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the court or a judge.

at the time of suing it out; because the plaintiff by the replication makes the latitat the commencement of the suit; therefore it may be considered in the nature of an original writ, and defendant ought to have the same advantage of it as the plaintiff. The same observation which was made at the conclusion of the cases relating to the plea of set-off applies here, viz. that if by the plea of tender being found for the defendant, the balance proved on the non assumpsit is under 40s. ; yet, if that, added to the sum tendered, exceed 40s. the jurisdiction of the superior court will not be affected, and the defendant will not be permitted to enter a suggestion on the roll in order to obtain his costs 4.

V. Damages.

Where an action is brought for not delivering goods upon a given day, the true measure of damages is the difference between the contract price, and that which goods of a similar quality and description bore on or about the day, when the goods ought to have been delivered. Contract for a quantity of oil at a certain price, to be delivered at a future day; in an action for not accepting and paying for the oil, the proper measure of damages is the difference between the price contracted for and the market price at the time when the contract ought to have been completed. But in an action for not replacing stock t, the highest value as it stood either when it ought to have been replaced, or at the time of trial, is to be taken, but not any higher price" to which the stock may have arisen at any intermediate time.

p Heaward v. Hopkins, Doug. 44.
q Middx. Court of Conscience, stat.
23 G. 2. c. 33. s. 19. (86.)

r Gainsford v. Carroll, 2 B. and C.
624.

S

s Boorman v. Nash, 9 B. and C. 145.
t Shepherd v. Johnson, 2 East. 211.
u M'Arthur v. Ld. Seaforth, 2 Taunt.
257.

(86) But see the words of the statute, by which it is enacted, "that if any action of debt or assumpsit shall be commenced in any of the king's courts at Westminster, and the defendant shall live or reside in Middlesex, and the jury upon the trial of such cause shall find the damages for the plaintiff under 40s. unless the judge shall in open court certify on the back of the record, that, 1. the freehold or title to the plaintiff's land, or 2. an act of bankruptcy principally came in question, &c. the defendant shall recover double costs." See also Clark v. Askew, 8 East, 28. Nightingale v. Barnard, 4 Bingh. 169.

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