The

until a request be made. omission of averring a special request or notice, where by law they are necessary, is matter of substance, and may be taken advanbe taken advantage of on a general demurrer; 5 Term Rep. 409. Bach v. Owen; and is not aided after verdict; 3 Bulst. 299. Doug. 679, 3rd edit. Rushton v. Aspinall; and the general averment of licet sæpius

to get the money. 3 B. & Sm. 305. Brighty v. Norton. In a In a case where a demand is necessary to give a right of action, a tender by the other party will not, generally speaking, supply the place of a demand. 2 B. & C. 682. Simpson v. Routh.]

(d) See Bowdell v. Parsons. 10 East, 359, contrd. That case was an action of assumpsit, in which there were several special counts. The first stated a promise by the defendant to deliver to the plaintiff certain hay, when he should be thereunto afterwards requested and averred that the defendant did not deliver it, although he was requested by the plaintiff so to do, but that, on the contrary, he afterwards sold and disposed of it to other persons, without the consent and against the will of the plaintiff. The second count stated the same promise, and averred that the plaintiff did request the defendant to deliver the hay, yet that the defendant did not,

although duly requested, deliver it. There were other similar counts. After judgment by default, it was moved in arrest of final judgment, that the requests were bad, not being laid with time and place. But the court held that the allegation in the first count, of the defendant's selling and disposing of the hay, rendered it unnecessary to state any request. (See also 5 B. & A. 712. Amory v. Broderick. 1 Dowl. & Ry. 361. S. C.) As to cases where the bringing the action is a sufficient demand, see post, 2 Saund., n. (6) to Hodsden v. Harridge.

(e) But a replication that the plaintiff had, before tender, instructed his attorney to sue out a writ, and that the attorney had, before tender, applied for such writ, which was afterwards sued out, is not good. 8 Term Rep. 629. Briggs v. Calverly. 5 Taunt. 307. Moffat v. Parsons. 1 Marsh. 55. S. C. [It may be observed that the replication of a writ sued

be always ready to pay, and state that circumstance in his plea of tender. If the plaintiff can falsify the plea, he avoids it; as where the defendant has been at any time requested to pay, either before or after the tender, and neglected or refused so to do, that avoids all tenders made both before and after such request; and the plaintiff may state it in his re

out was only necessary when the plea alleged the tender to have been made "before the exhibiting "of the bill." See post, vol. ii., p. 1, n. (1). But as the tender must now, in all cases, be pleaded to have been made "before the commencement of this suit," the proper course is to traverse the tender, and not to reply the prior issuing of the writ.]

(f) In which case it was held that the acceptor of a bill of exchange, having dishonoured it when due, cannot plead a subsequent tender of the amount, charges, and interest, before action brought. [Nor can he plead that, after the bill became due, he tendered the amount, with interest, and that he hath always, from the time when the bill became due, been ready to pay the plaintiff the amount, with interest. The plea ought to state, not only that the defendant was ready to pay on the day of payment, but that he tendered on that day. 2 Mees. & W. 223. Poole v. Tumbridge. [10

plication. 2 Salk. 622. Giles v. Hart. S. C. 1 Ld. Raym. 254. Carth. 413. 12 Mod. 152. 2 Salk. 623. Sweatland v. Squire. S. C. 10 Mod. 81. 1 Lutw. 220. Johnson v. Mapletoft. Willes's Rep. 632. Haldenby v. Tuke. 8 Term Rep. 629. Briggs v. Calverly. See also 8 East, 168. Hume v. Peploe (f). Formerly pleas of tender were considered in the light

Exch. 767. Dobie v. Larkan]. 5 C. B. 379. Dixon v. Clark. For when a party accepts a negotiable bill, he binds himself to pay the amount, without notice, to whomsoever may happen to be the holder, and on the precise day when it becomes due. 2 Mees. & W. 225. But where it does not appear that the debt is payable on a particular day, as on an indebitatus count, it is a good plea that the defendant was always ready and willing to pay, and before suit tendered, and offered the plaintiff to pay the same. And if the plaintiff means to rely on the debts being payable on a particular day, he ought to reply it. 5 C. B. N. S. 632, 635. Smith v. Manners.] A plea of tender is applicable only to cases where the party pleading has never been guilty of any breach of his contract. Per Lord Ellenborough, 8 East, 170. It has, nevertheless, been held, that the drawer or indorser of a bill of exchange may plead a tender made

of dilatory pleas, and construed with the same strictness. Therefore it was held, that a tender must be pleaded within four days, and cannot be pleaded after a general imparlance. But of late years this strictness has been relaxed; and the rule now is, that a tender need not be pleaded within four days; may be after an imparlance; is an issuable plea within the terms of pleading issuably under a judge's order; and is in

short looked upon as a fair and honest plea to the merits of the action. 1 Burr. 59. Kielwick v. Maidman. 1 H. Black. 369. Noone v. Smith. 2 Saund. 2, in the notes. The action of assumpsit being to recover damages against the defendant for the non-performance of his promise, a tender cannot in this action be pleaded in bar of the damages, for that would be to preclude the plaintiff from recovering his debt, which

within a reasonable time after notice of dishonour. 5 Taunt. 340. Walker v. Barnes. 1 Marsh. 36. S. C. [However, where, to a declaration against the indorser of a bill of exchange, the defendant pleaded that the action was commenced before a reasonable time for the payment of the bill by the defendant had elapsed after notice of dishonour, the plea was held bad; and the court appeared to doubt the authority of Walker v. Barnes. 1 Cr. Mees. & R. 370. Siggers v. Lewis.] In Rivers v. Griffiths, 5 B. & A. 630, the plaintiff replied a previous demand of the sum tendered, on which the defendant took issue, and on the trial it was held by Abbott, C. J., and confirmed afterwards by the court, that proof of a demand of a larger sum did not support this issue; a demand of the precise sum tendered must be proved. [So a replication that the sum tendered was part of a larger sum due,

M.&

which larger sum was demanded before the tender, is bad; 3 Q. B. 915. Brandon v. Newington. 3 G. & D. 194. S. C. 11 M. & W. 356. Hesketh v. Fawcett. (9 M. & W. 338. Tyler v. Bland, contrà, has been overruled. 5 C. B. 378. Dixon v. Clark); though it seems to be good, if it shews that the sum tendered was part of a larger sum due upon one entire contract, as a bill or note; for then it appears that the party pleading the tender has been guilty of a breach of his contract. 11 M. & W. 356.

7 M. & W. 147. Cotton v. Godwin. Post, 44, 45, n. (). If the defendant has made a tender of a larger sum than the actual debt, the tender is good; and he may plead it as a tender of the less sum. 4 B. & Ad. 546. Dean v. James. And in such a case, if the plaintiff means to rely on a subsequent demand of the sum tendered, he must, it should seem, reply specially. Ibid.]

cannot be; for the debtor must nevertheless pay the debt. Therefore the form of the plea in that case is to confess the damages due, and bring the money into court, and pray judgment of further damages, such as interest and the costs of bringing the action. But in debt, as the judgment is to recover the debt, and damages are merely ancillary, being only for the detention and delay of the debt, the proper form is to plead

(g) [Since the C. L. P. Act, 1852, abolishing the allegation of actionem non and the prayer of judgment, the practice is in all pleas of tender, whether in debt or assumpsit, to state merely that the defendant always was and still is ready to pay the debt, and before action brought [or if the debt was payable on a certain day on the said day of 1, tendered and offered to pay the same to the plaintiff, and the plaintiff refused to accept it, and the defendant now brings the said into court, ready to be paid to the plaintiff. See Precedents by Bullen and Leake, p. 694].

(h) So the person pleading a tender must prove an actual offer of the money produced, or that the production was dispensed with by the creditor. 10 East, 101. Thomas v. Evans. 2 M. & S. 86. Read v. Goldring. 5 Taunt. 307. Moffat v. Parsons. 1 Marsh. 55. S. C. [As to what will amount to

a tender in bar of the damages; but still the tender is no bar to the action in debt any more than in assumpsit. 2 Salk. 623. Giles v. Hartis. 1 Ld. Raym. 254. 12 Mod. 152, 153 (g). In this plea it is not sufficient to state that the defendant is, and always has been, ready to pay, but he must also say that he tendered and offered to pay. 2 Wils. 74. French v. Watson (h). An idea seemed once to prevail, that if the plaintiff did

such dispensation, see further, 1 Cr. & Mees. 748. Reay v. White.

Finch v.

1 Bing. N. C. 253. Brook. 3 C. & P. 342. Leatherdale v. Sweepstone. 2 C. & P. 77. Harding v. Davies. 7 B. Moore, 59. Kraus v. Arnold.] In Moffat v. Parsons it was held, that a tender made to an agent authorized to receive the money is a good tender to the principal. See also 1 Camp. 477. Goodland v. Blewith. [Moo. & M. 238. Wilmott v. Smith. 1 Mees. & W. 310. Kirton v. Braithwaite. S. P. 1 C. & P. 365. Blow v. Russell. Mood, & M. 200. Barrett v. Deere. But see 2 Cr. & M. 304. Sanderson v. Bell.] The Bank Restriction Acts did not make bank notes a legal tender. 2 Bos. & Pull. 526. Grigby v. Oakes. But a tender in bank notes was held good, if not objected to at the time on that account. 3 Term Rep. 554. Wright v. Read, per Buller, J. So, a tender in country bank notes. See

Horne v.

Lockyer v. Jones. Peake's Ni. Pri. Cases, 239, note, and the other cases in the same note. [2 Cr. & Jerv. 15. Polglass v. Oliver. By stat. 56 G. 3, c. 68, the tender must be in gold if above 40s. But no valid tender can be made of gold, silver, or copper coin defaced by names or words stamped thereon, or bent by any machine or instrument. 16 & 17 Vict. c. 402. But by stat. 3 & 4 W. 4, c. 98, s. 6, notes of the Bank of England payable to the bearer on demand, are a legal tender for any sum above 5l., except at the Bank itself and its branches.] Tender of a larger sum demanding change is not good. 3 Camp. 70. Batterbee v. Davis. 6 Taunt. 336. Robinson v. Cooke. [1 C. & P. 394. Blow v. Russell. Unless the creditor, without objecting to give change, refuses to take the money, on the ground that he claims more. 5 Dowl. & R. 289. Cadman v. Lubbock. 8 Mees. & W. 298. Richardson v. Jackson. Nor is a tender good, when a stamped receipt is demanded; for the debtor ought, according to stat. 43 G. 3, c. 126, to bring a receipt with him and require the creditor to sign it, and to pay the amount of the stamp. 1 C. & P. 257. Laing v. Meader. (But see 8 Dowl. 442.

Lewin. But in the case of Le Grew v. Cook, 1 Bos. & Pull. Rep. 332, where the plaintiff replied an original, and took the money

Jones v. Arthur.) The Stamp Act having been repealed as to sums under 5l., it has been doubted whether a tender of a debt under that amount would be invalidated by a demand of a receipt. 8 Mees. & W. 299.] Nor is a tender good when a receipt in full is demanded. Peake's Ni. Pri. Cases, 238. Cole v. Blake. 5 Esp. 48. Glascott v. Day. 2 Camp. 21. Huxham v. Smith. [1 C. & P. 419. Griffith v. Hodges. Nor when the tender is clogged with a condition that it shall be accepted as all that is due. 2 C. & P. 50. Cheminant v. Thornton. Ibid. 51, note. Peacock v. Dickerson. Mitchell v. King. Gordon v. Cox. Sutton v. Hawkins. Jennings v. Major. (But see 8 C. & P. 752. Robinson v. Ferreday.) 3 Bing. 304. Strong v. Harvey. See further, as to what are and what are not conditional tenders, 2 Dowl. & R. 305. Brady v. Jones. 8 C. & P. 573. Hastings v. Thorley. 5 Mees. & W. 306. Bevans v. Rees. 1 Q. B. 409. Henwood v. Oliver. The question whether a tender is conditional or not, is not necessarily for the judge; in some cases it may be left to the jury. 7 A. & E. 80. Eckstein v. Reynolds. 5 C. B.

6 C. & P. 237. 7 C. & P. 172. 8 C. & P. 259.

Ibid. 61.