Relief in

equity against lapse of time.

Place of perform

ance.

even before action brought, be able and willing to complete the contract (a). But in equity upon a bill for specific performance of a contract for the sale of land, the Court directs an inquiry as to the title, and the vendor, on the one hand, is bound to make out a good title upon such inquiry, and, on the other, is not precluded from exacting performance, if he succeeds in then making a title, by reason of not having been able before to do so (b).

Time is held to be of the essence of the contract in equity in cases of direct stipulation to that effect, as where the parties to the contract introduce a clause expressly stating that time is to be of the essence of the contract; and it is also held to be of the essence of the contract where the circumstances of the case necessarily show it to be so, as where the matter of the contract is required for immediate use, or is of a terminable or fluctuating character, or value (c). By the conditions of sale of an estate it was stipulated that all objections to the title should be sent in within twenty-eight days after the delivery of the abstract, and all objections not made within the same time should be considered as waived; it was held that the time mentioned was of the essence of the contract, although the condition did not expressly so stipulate (d).

If no certain place is appointed for the performance of a contract, the promiser is bound at his peril to find the promisee within the time limited, if he be within the four seas, in order to complete the performance (e). It is laid down by Littleton, that the obligor of a bond conditioned for the payment of money at a particular day, is bound to seek the

(a) Wilde v. Fort, 4 Taunt. 334; Dobell v. Hutchinson, 3 A. & E. 355. (b) Bennett College v. Carey, 3 Bro. C. C. 390; Jenkins v. Hiles, 6 Ves. 646; Wynn v. Morgan, 7 Ves. 202; Paton v. Rogers, 6 Madd. 256; see Stourton v. Meers, cited 2 P. Wms. 630; Coffin v. Cooper, 14 Ves. 205.

(c) Parkin v. Thorold, 16 Beav. 59; Earl Darnley v. London Chatham and Dover Ry. Co., 33 L. J. C. 9; Mac

bryde v. Weekes, 22 Beav. 533; Lord Ranelagh v. Melton, 34 L. J. C. 227.

(d) Oakden v. Pike, 34 L. J. C. 620, where see the remarks of Kindersley V. C. upon the practice of the Court in relieving parties from the effect of their contracts in regard to time.

(e) Sheppard's Touch. 136, 378; Kidwelly v. Brand, Plowden, 71; per Parke, B., Startup v. Macdonald, 6 M. & G. 593, 624.

obligee, if he be in England, and at the set day to tender him the money, otherwise he shall forfeit the bond (a).

In the case of a feoffment in mortgage "the feoffor must tender the money to the person of the feoffee, and it is not sufficient for him to tender it upon the land; otherwise it is of a rent that issueth out of the land. But if the condition of a bond or feoffment be to deliver twenty quarters of wheat or twenty loads of timber or such like, the obligor or feoffor is not bound to carry the same about and seek the feoffee, but the obligor or feoffor before the day must go to the feoffee, and know where he will appoint to receive it, and there it must be delivered, and so note a diversity between money and things ponderous or of great weight” (b).

Where rent is reserved upon a demise, at common law the lessee has until the last moment of the day to pay the rent; and if he tender it to the lessor personally a convenient time before midnight, he is not liable to an action (c). But it is competent to the lessee to protect himself from a forfeiture for breach of a condition in nonpayment of rent, and it would seem also from an action of debt for the rent reserved, by being ready on the land at the door of the mansion house, or the place most notorious, a convenient time before sunset for the rent to be counted over and received, and remaining there during that time, though the lessor be not there to receive it (d). And at common law, in order to entitle a lessor to re-enter and avoid the lease for forfeiture by breach of the condition for the payment of rent, it is incumbent on the lessor to demand the rent upon the land at the most notorious place on the day when it becomes due, a sufficient time before sunset to admit of the payment being made (e). But "a covenant for the payment of rent, at the time and in

(a) Litt. s. 340; and see Cranley v. Hillary, 2 M. & S. 120, 122.

(b) Co. Litt. 210 b.

(c) Keating v. Irish, 1 Lutw. 593; Cropp v. Hambleton, Cro. Eliz. 48; Co. Lit. 202 a; 211 a.

(d) Hill v. Grange, Plowd. 173; Crouch v. Fastolfe, T. Raym. 418; Tinckler v. Prentice, 4 Taunt. 549.

(e) Co. Lit. 2016; 1 Wms. Saund. 286 b, (16); and see Haldane v. John

son, 8 Ex. 689, 694; 22 L. J. Ex. 264, 265; and see the statute 4 Geo. II. c. 28, s. 2, re-enacted by C. L. P. Act, 1852, 15 & 16 Vict. 76, s. 210, enabling the landlord to proceed in ejectment upon his right of entry, in certain cases, without a formal demand of the rent. Doe d. Lawrence v. Shawcross, 3 B. & C. 752; and see as to proceeding in the County Court, 19 & 20 Vict. c. 108, s. 52.

Place of perform

ance.

the manner reserved, when no particular place of payment is mentioned, is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incumbent upon the covenantor to seek out the person to be paid, and pay or tender him the money, and for the simple reason, that he has contracted so to do" (a).

If a person makes a promissory note, or accepts a bill of exchange generally, without restricting the place of payment, he is bound to find out the holder when the bill or note is due, and tender payment; he is not entitled to have it presented at any particular place for payment, nor is he entitled to notice of indorsement, if it has been indorsed (b); but the maker of the note, or acceptor of the bill may expressly qualify his liability in this respect, and restrict it to payment at a particular place (c).

Where a debtor entered into a composition with his creditors whereby it was agreed that he should pay a certain composition upon their debts to be secured by promissory notes, it was held that the debtor was bound to tender the promis-. sory notes to each creditor, and that a creditor to whom he had omitted to tender the notes was not precluded by the agreement from recovering the original debt, although he might have received his notes if he had applied for them (d).

The duty of the debtor to seek the creditor in order to pay him, where no particular place is agreed upon for payment, continues only whilst the creditor remains within the realm of England; the debtor is not bound to go abroad to seek his creditor, and if the creditor by going abroad prevents the tender being made to him, the debtor is excused (e). But in the case of a foreign contract, the performance of which is not so restricted, the fact of the creditor being abroad is no excuse for the debtor not tendering to him the perform

ance which he has stipulated for (a). Thus, where the defendant being indebted to the plaintiff, a foreigner resident abroad, in a debt contracted abroad, made a deed of composition with his creditors whereby he undertook to pay a certain composition in the pound to his creditors, it was held that he was not excused from tendering the amount of the composition to the plaintiff by reason of the plaintiff being resident abroad (b).

WHERE the performance of the contract is dependent upon Tender. some act of the promisee and cannot be completed without his concurrence, if the promiser does everything on his part necessary to a complete performance, but the promisce refuses to concur in what is necessary on his part, the promiser is discharged from liability for the non-completion of the contract (c).

"In every contract by which a party binds himself to deliver goods, or pay money, to another, he in fact engages to do an act which he cannot completely perform without the concurrence of the party to whom the delivery or payment is to be made. Without acceptance on the part of him who is to receive, the act of him who is to deliver or pay can amount only to a tender. But the law considers a party who has entered into a contract to deliver goods or pay money to another as having substantially performed it, if he has tendered the goods or money to the party to whom the delivery or payment was to be made" (d).

(a) Fessard v. Mugnier, 18 C. B. N. S. 286; 34 L. J. C. P. 125.

(b) Ib.

(c) See ante, p. 435.

(d) Per Rolfe, B., Startup v. Macdonald, 6 M. & G. 593, 610.

Plea of tender in bar

The term tender is specially applied to the discharge of money debts, and in this application has a definite technical meaning.

It was formerly held that a plea of tender was not in bar of an action of the action, but in bar of the damages only, because the for the debt. plea admitted the existence of the debt (a); but the con

Continued readiness to pay after tender.

trary has since been decided, and it seems to be now clearly settled that a plea of tender constitutes a complete answer to the action. "The principle of the plea of tender is, that the defendant has been always ready to perform entirely the contract on which the action is founded; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance by refusing to receive it." It thus shows that the plaintiff might have obtained what he claims without an action, and that the action was unnecessary (b).

Tender has the same effect in equity of placing the creditor in the wrong by his refusal, and making him liable for the expense of the consequent litigation; thus, a mortgagee, who refuses a tender of the amount due, must pay the costs of the redemption suit rendered necessary by his refusal (c). The debtor, notwithstanding the refusal of his tender, must continue ready and willing to pay on demand; and the plea of tender, besides averring that the defendant tendered the debt at the time when it became due, must also aver that the defendant always was and still is ready (toujours prist and uncore prist) to pay the debt (d). “With respect to the averment of toujours prist, if the plaintiff can falsify it, he avoids the plea altogether; therefore if he can show that an entire performance of the contract was demanded and refused, at any time when by the terms of it he had a right to make such a demand, he will avoid the plea" (e). Readiness before the time of performance is immaterial, inasmuch

(a) Johnson v. Clay, 7 Taunt. 486, 487; Cooch v. Maltby, 23 L. J. Q. B. 305.

(b) Dixon v. Clark, 5 C. B. 365, 377; James v. Vane, 2 E. & E. 883; 29 L. J. Q. B. 169.

(c) Harmer v. Priestley, 16 Beav.

569; 22 L. J. C. 1041; Hosken v. Sincock, 34 L. J. C. 435.

(d) Dixon v. Clark, 5 C. B. 365,

377.

(e) Dixon v. Clark, 5 C. B. 365, 378; Cotton v. Godwin, 7 M. & W. 147 .