this may be a very good tender for fifteen, for he has only to select so much, and restore me the residue. But a tender in bank notes is quite different. In that case the tender may be made in such a way that it is physically impossible for the creditor to take what is due and restore the difference. If 37. 10s. could be tendered by a note for 51., so it might by a note for 50,000l." (l). But if not objected to on that account, such a tender would seem to be good; per Buller, J., in Wright v. Reed, 3 T. R. 554. 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 in going from home for a time, left the 10l. with his clerk there. Some time afterwards the plaintiff called and demanded 167. 8s. 1ld., which he said he supposed Evans had received, when the clerk told him that Evans was gone from home, and had left with him 107. to give to the plaintiff when he called. The plaintiff said he would not receive the 107., nor anything less than his whole demand. The clerk did not offer the 107. The court were of opinion that the evidence was insufficient; Lord Ellenborough, C. J., observing, "It is expressly stated, that the clerk did not offer the 107. only talked about having 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" (m). He 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 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. (n) A tender of foreign money, made current by royal proclamation, is equivalent to a tender of lawful money of England (0). A tender of money to an agent authorized to receive payment, is a good tender to the creditor himself (p). It must be made either to the creditor himself, or to an agent authorized to give a receipt for the debt (g). A plea of tender to a special count admits the contract as laid in the declaration, Cox v. Brain, 3 Taunt. 95; secus, in the case of the indebitatus counts; Bulmer v. Horne, 4 B. & Ad. 132. By 56 Geo. III. c. 68, ss. 11 & 12, it is declared, that gold coin, of the weight and fineness prescribed by the Mint indenture, shall be the only legal tender for payments of any sum exceeding forty shillings, and that no tender of payment in silver coin beyond that sum shall be legal. By 3 & 4 Will. IV. c. 98, s. 6 (r), a tender of (1) Per Le Blanc, J., in Betterbee v. Davis, 3 Campb. 70. See also Robinson v. Cook, 6 Taunt. 336. (m) Thomas v. Evans, 10 East, 101. (n) Douglas v. Patrick, 3 T. R. 683. (0) Wade's case, 5 Rep. 114, b. (p) Goodland v. Blewitt, 1 Camp. 477. See also Moffat v. Parsons, 5 Taunt. 307. (g) Per Parke, B., Kirton v. Braithwaite, 1 M. & W. 313. (r) See 7 & 8 Vict. c. 32. Bank of England notes payable to bearer on demand is made a legal tender to the amount expressed in such notes, and is to be "taken to be valid as a tender to such amount, 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 continue to pay on demand their said 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 in London all notes of the bank or of any branch thereof. At common law, independently of the above statute, a tender of Bank of England notes (s) or country bank notes is good, if the creditor only objects to the quantum and not to the quality of the tender (t); and so of a cheque. Jones v. Arthur, 8 Dowl. 442. Where a tender of goods is alleged, it is necessary to show a delivery under such circumstances that the defendants had an opportunity of seeing that the articles delivered to them were such as they had stipulated for (u); unless the contract of sale is inconsistent with such a condition, as where goods are sold by auction, having been open to public inspection two days previously. Pettit v. Mitchell, 4 M. & G. 819. 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, will not deprive the defendant of the benefit of his tender, if such tender was made before the actual commencement of suit. Hence it is not any answer to a plea of tender before the exhibition of the plaintiff's bill (x), that the plaintiff had before such tender retained an attorney, and instructed him to sue out a latitat (y) against the defendant, and that the attorney had accordingly applied for such writ, before the tender, which writ was afterwards sued out (2). Where money is payable on a particular day, a tender made so late on that day that there would not be time to count the money, would (semble) be bad. Tinkler v. Prentice, 4 Taunt. 549. Where goods (10 tons of oil) were, by the terms of the contract, to be delivered within 14 days, and on the 14th day, at 8.30 p.m., the vendor tendered the oil to the vendee, and the jury, on a special verdict, found that the said time was by reason of its lateness an (s) Per Buller, J., Wright v. Reed, 3 T. R. 554. (t) Polglass v. Oliver, 2 C. & J. 15. (u) Isherwood v. Whitmore, 11 M. & W. 347. (x) The writ of summons is now the commencement of personal actions. See 15 & 16 Vict. c. 76; 1 & 2 Vict. c. 110, s. 2. (y) A writ of process in Queen's Bench to bring the defendant into Court; Tidd's Pr. (8th ed.) 143; abolished in effect by the Uniformity of Process Act, 2 Will. IV. c. 39. (x) Briggs v. Calverly, 8 T. R. 629. unreasonable and improper time of day for the said tender, but also that there was sufficient time before midnight for the vendor to deliver, and for the vendee to receive, examine, and weigh the oil, it was held, that such tender was sufficient; but that it would have been otherwise if by reason of the lateness of the hour the vendee had left his warehouse (a). 66 Of the Form in which a Tender must be pleaded.—Where the money is by the agreement payable immediately, the party pleading a tender must show that he was "always ready," from the time when the cause of action accrued (b). Hence to an action of indebitatus assumpsit, where the 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, &c.; on demurrer the plea was held 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" (c). 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. Hartis, Salk. 622. Both the above conditions are necessary. Thus where, to an action on 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 tendered the whole money then due upon the bill, with interest, &c.; and that he always, from the time of the tender, had been ready, &c.; on demurrer, the plea was held bad: Lord Ellenborough, C. J., observing, that in Giles v. Hartis, 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 landmarks in pleading which ought not to be departed from (d). So in Poole v. Tunbridge, 2 M. & W. 223, where the plea alleged that after the bill became due, and before suit, the defendant tendered, &c., and that he was always, from the time the bill became due, ready, &c., the plea was held bad (e); and per Parke, B., "Nothing can discharge a covenant" (or contract) "to pay on a certain day but actual payment or tender on that day, although if the party afterwards chooses to receive the money, that may be pleaded by way of accord and satisfaction." A plea that the defendant is ready, and has always been ready, with a profert in curia, but not averring a tender, will be bad on general demurrer (ƒ). Of the Replication.-To a plea of tender the plaintiff may reply a demand and refusal, either prior or subsequent to the tender (pro (a) Startup v. Macdonald (in error), 6 M. & G. 593. (b) Giles v. Hartis, Ld. Raym. 254. (c) Sweatland v. Squire, Salk. 623. (d) Hume v. Peploe, 8 East, 168. (e) On special demurrer, and these are now abolished by 15 & 16 Vict. c. 76, s. 51. Although, however, such a plea might perhaps be held good on demurrer since that act, the defendant would still be bound under it to prove at the trial a tender on the day the bill became due. See Siggers v. Lewis, 1 C., M. & R. 370. (f) French v. Watson, 2 Wils. 74; acc. Haldane v. Johnson, 8 Exch. 689. vided the demand be made after the cause of action accrued), for this negatives the fact that the defendant was "always" ready to pay (g). Under this issue, if the contract be divisible, as in an action for goods sold, work and labour, &c. (h), and the tender be to part, it will be incumbent on the plaintiff to prove that he demanded the precise sum tendered (i); but proof of a demand of a larger sum than that which was tendered will support the issue if the contract be entire and indivisible, (as on a promissory note (j),) for in such a case a tender of part is inoperative (k). The demand ought to be made by some person authorized to give the debtor a discharge. Hence, 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 (1); but the fact of sending a person to make the demand, would (semble) imply authority to give a discharge. See per Parke, B., in Kirton v. Braithwaite, 1 M. & W. 313. The same observation which was made at the conclusion of the cases relating to the plea of set-off (ante, p. 170) applies here, viz. that if by the plea of tender being found for the defendant, the balance proved to be due to the plaintiff 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 (m); secus, in a case of part-payment before action brought (n). V. Costs. By 13 & 14 Vict. c. 61, s. 11, it is enacted, that- "If in any action commenced after the passing of this act in any of her Majesty's superior Courts of Record in covenant, debt, detinue, or assumpsit (not being an action for breach of promise of marriage), the plaintiff shall recover a sum not exceeding 201.—the plaintiff shall have judgment to recover such sum only, and no costs, except in the cases hereinafter provided (o), and except in the case of judgment by default (p); and it shall not be necessary to enter any suggestion on the record to deprive such plaintiff of costs, nor shall (g) Per Parke, B., Poole v. Tumbridge, 2 M. & W. 226; Rivers v. Griffiths, 5 B. & Ald. 630. (h) Hesketh v. Fawcett, 11 M. & W. 356. (i) Brandon v. Newington, 3 Q. B. 915. any plaintiff be entitled to costs by reason of any privilege as attorney or officer of such court or otherwise." The above section applies whenever the action is substantially founded on contract, in whatever form the declaration be framed. Legge v. Tucker, 1 H. & N. 500. By s. 12 it is provided, that—" If the plaintiff shall in any such action as aforesaid recover a sum less than the sum in that behalf hereinbefore mentioned 201. (in actions of contract)-by verdict, and the judge or other presiding officer before whom such verdict shall be obtained, shall certify on the back of the record that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in any such county court as aforesaid, or that it appeared to him at the trial that there was a sufficient reason for bringing the said action in the court in which the said action was brought, the plaintiff in such case shall have the same judgment to recover his costs that he would have had if this act had not been passed." The granting of the certificate in such a case is entirely in the discretion of the judge or officer presiding, and the court will not afterwards interfere to set it aside (q). And it seems that it is not necessary that the certificate should be granted at the time of the trial, but it may be granted by the judge within a reasonable time afterwards (r). VI. Damages.--Judgment. Where an action is brought for not delivering goods upon a given day, the true measure of damages is the difference between the price agreed for, and that which goods of a similar quality and description bore on or about the day when the goods ought to have been delivered (s). So in the case of non-delivery of railway shares (t); "for the plaintiff has the money in his own possession, and might have gone into the market and bought other shares (or goods) as soon as the contract was broken,' per Parke, B., S. C. So, e converso, in an action for not accepting and paying for goods, 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 (u), for the vendor may immediately after breach take his goods into the market and sell them. Where A. contracted for the purchase of wheat "to be delivered at B. as soon as vessels could be obtained for the carriage thereof," and subsequently (the market having fallen) A. gave the (q) Tudor v. Jones, 18 L. T. 225. (r) Tharratt v. Trevor, 6 Exch. 187. Semble, at any time before the costs are taxed, S. C. VOL. I. (s) Gainsford v. Carroll, 2 B. & C. 624; Valpy v. Oakley, 16 Q. B. 935. (t) Shaw v. Holland, 15 M. & W. 136. (u) Boorman v. Nash, 9 B. & C. 145, N |