nations, or on another ground, which would amount only to a breach of the municipal regulations of the condemning country (o).

It was laid down by De Grey, C. J., in the Duchess of Kingston's case (p), that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar; or, as evidence, conclusive, between the same parties, upon the same matter directly in question in another court.

But if a party rely upon a verdict and judgment in his favour, recovered in one of our colonies, and affirmed by the king in council, upon the question again sought to be investigated in an English court, he must show by his plea that the judgment was final and conclusive in the colony itself, so as to bar the plaintiff from another action there (q). And if it appear on the face of a French judgment that the French court proceeded on a mistake of the law of England, such judgment has no operation here upon the matter in which the error occurred (r).

VII. ARBITRAMENT AND AWARD (s).

A plea of arbitrament and award, as it is technically termed, may effectually be pleaded in bar (t), where an action is brought for the recovery of unliquidated damages, arising from a tort connected or unconnected with a contract, and an award has been made between the parties, upon a submission giving mutual remedies in case of non-performance,-and in this case the award is made a bar to an action upon the original cause of action, although the defendant has not performed the award. This was decided in the case of Gascoyne v. Edwards (u). The declaration was in covenant upon a lease for not repairing, and the defendant successfully pleaded an award, by which it was directed that the defendant should pay the plaintiff 5l.; should put the premises in repair; and leave the same at a certain time.

But where the action is brought for a debt, and the award be

(0) Per Tindal, C. J., in Dagleish v. Hodgson, 7 Bing. 495, 504; 5 M. & P. 407, S. C.

(p) 20 Howell's St. Trials, 538; see also Bull. N. P. 244; Phillips v. Hunter, 2 H. Bla. 402.

(q) Plummer v. Woodburne, 7 D. & R. 25; 4 B. & C. 625, S. C.

(r) Novelli v. Rossi, 2 B. & Ad. 757. Foreign judgment when not conclusive; Ferguson v. Mahon, 3 P. & Dav. 143.

(s) See Rol. Ab. Arbitrament, (V);

Com. Dig. Accord, (A 1); Bac. Ab.
Arbitrament, (G); Watson, 147; Cald.

223.

(t) This must now be specially pleaded. See Form, 3 Chitty Pl. 6th ed. 793; Chitty, jun. Prec. Pl. 225.

(u) 1 Y. & J. 19, decided on general demurrer; S. C., cited by Lord Lyndhurst, C. B., in Allen v. Milner, 2 C. & J. 53. See Crofts v. Harris, Carth. 187; Allen v. Harris, 1 Lord Ray, 122.

fore made has only decided that it is due, and ascertained its amount; and the money payable under the award is nothing but the original debt, so ascertained in amount, the plea of arbitrament and award is bad. In Allen v. Milner (x) the action was in indebitatus assumpsit for tolls. The defendant pleaded that differences had arisen between him and the plaintiff, touching the claim; and that they mutually submitted themselves to refer, and did refer the said matter in difference to arbitration; that they mutually promised to abide by the award; and that the umpire made his award of and concerning the said premises, and did thereby award that the defendant should pay to the plaintiff the sum of 13. To this plea the plaintiff demurred specially, because the plaintiff did not aver payment of the 137., or any other satisfaction of the plaintiff's demand. The question therefore was, whether this award was of itself, without payment or satis faction, any bar; and the court, considering the nature of the plaintiff's demand, and the nature of the award, were of opinion that is was not. Lord Lyndhurst, C. B., in delivering the judgment of the Court, said, "The plaintiff's demand is for a debt, and the award is not for the performance of any collateral act, but for the payment of money. The matter, therefore, for the consideration of the arbitrator was, whether there were any and what debt; the award only ascertains that there is a debt, specifies the amount, and directs the payment; but the money, till paid, is due in respect of the original debt, i. e., for tolls; its character remains the same; nothing is done to vary its nature, or destroy its original quality. Had the demand been of a different description, as for the delivery of goods, and the award had directed a payment of money in satisfaction of the demand, it might then have been said that the award had changed the nature of the original demand; that the right to have the goods was gone, and the only right remaining was the substituted right, i. e., the right to have the money; or, had the demand been for a debt, and the award had directed, not payment in money, but payment in a collateral way, as by delivery of goods, performance of work, &c., it might perhaps have been said that the right to have payment in money was gone; but here the 137. is to be paid for the original demand, i. e., for the tolls; and it is to be paid as that demand was to have been paid, i. e., in money."

(x) 2 C. & J. 47.

Where all matters in difference are referred, the party, as to every matter included within the scope of such reference, ought to come forward with the whole of his case before the arbitrator, if he mean to insist upon it as a matter of difference. He cannot reserve it, and make it the subject matter of a fresh action (y). In Dunn v. Murray (2), the declaration stated that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant undertook to employ him for a year; and alleged as a breach that the defendant dismissed the plaintiff from his employ before the end of the year, without any reasonable or probable cause. The declaration contained counts for wages, and for work and labour, &c. The cause, which was commenced before the expiration of the year, was referred to an arbitrator, who awarded to the plaintiff a sum of money, equivalent in amount to the wages he would have been entitled to receive from the defendant on the day when the action was commenced. No claim was made before the arbitrator for any compensation in damages for the dismissal; except so far as the special count in the declaration, and the evidence of the employment and the dismissal, might amount to such a claim. The plaintiff having afterwards brought an action to recover a compensation in damages, in consequence of the dismissal from the defendant's employ before the end of the year; it was held that the award of the arbitrator was a bar to such action.

A clause in an agreement that if any dispute should arise, the matter in difference should be referred to arbitration, is no defence to an action. In an action on a policy, containing a stipulation that in case of any loss or dispute about the policy, it should be referred to arbitration, it was objected at the trial that the action did not lie before a reference. The point was reserved, and the Court said,-" If there had been reference depending, or made, or determined, it might have been a bar; but the agreement of the parties cannot oust this Court; and as no reference has been made, nor is any depending, the action is well brought, and the plaintiff must have judgment (a)." In Goldstone

(y) Smith v. Johnson, 15 East, 213. (2) 9 B. & C. 780; 4 Mann. & R.

571.

(a) Hill v. Hollister, 1 Wils. 129;

Thompson v. Charnock, & T. R. 139;
Tattersall v. Groote, 2 B. & P. 131;
Street v. Rigby, 6 Ves. jun. 815.

v. Osborn (b), where it appeared that one of the conditions in a policy of insurance against fire stated that if any difference should arise on any claim, it should be immediately submitted to arbitration; and after directing how the arbitrators should be chosen, added, that no compensation should be payable until after an award, determining the amount thereof, should be duly made; it was held, that the assured might maintain an action on such policy, notwithstanding the condition; as the insurers denied the general right of the assured to recover anything, and did not merely question the amount of damage.

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1. When a Tender is available, and the Effect thereof. The tender of a debt before action brought is available as a defence, whenever the demand is of a pecuniary nature, reduced or reducible to a certainty, and the debtor has always been ready to pay the money (c). It is valid, although the claim be strictly. upon a quantum meruit (d). It applies whenever the demand is in the nature of a debt, though the amount has not been expressly fixed or agreed upon by the parties; but cannot be effectually made where the action is brought specially for the recovery of unliquidated damages, for the non-performance of a contract (as for not repairing) and which damages it is purely the province of a jury to estimate (e).

proceed.

(d) Johnson v. Lancaster, Stra. 576; Cox v. Brain, 3 Taunt. 95.

(e) Searle v. Barrett, 2 Ad. & E. 82; 4 Nev. & M. 200; 3 Dowl. P. C. 13. As to a tender of amends, in an action for an involuntary trespass, where the defendant disclaims title, see 21 Jac. 1, c. 16, s. 5; Com. Dig. Pleader, (3 M. 36); Vin. Ab. Trespass, (S) a; Bac. Ab. Tender, (P 8); in

Upon a bare covenant for the payment of money, the defendant may plead a tender (f).

A tender does not extinguish the debt (g). The debtor is still liable to pay it whenever required to do so (h); but it bars the claim to damages and interest, for not paying, or for detaining it, and the costs of an action brought to recover the demand.

A tender admits the contract and facts specially stated in the declaration, if the plea be applied to that part of the declaration. Therefore, where a count averred that in consideration the plaintiff would let to the defendant certain tithes, the defendant agreed to pay 417.; and that the plaintiff did let the said tithes, and permit the defendant to take them; it was held, that a plea of tender to such count precluded the defendant from showing an interruption to his taking the tithes (i). It has, however, been doubted, whether a plea of a tender of part of the sum claimed in the declaration, there being only one contract proved, admits the contract (k).

2. By whom made.-A tender need not be made by the debtor in person. It may be made by a third person, by his desire, and on his behalf (7).

Any person may make a tender on the behalf of an idiot; for the law, by reason of his utter inability to act for himself, allows this to be done out of charity (m).

A tender by an agent, at his own risk, of more than the money given him by his principal, is good (n).

3. To whom made.-A tender need not be to the creditor personally. It may be made to an agent authorised to receive the money for him (o). A tender of rent and expenses may be made

an action against magistrates, 24 Geo. 2, c. 44, s. 2; in cases of irregular distresses, 11 Geo. 2, c. 19, s. 20; and in other particular cases, Bac. Ab. tit. Tender, (P). By the French law it is competent to a debtor to make what is termed a deposit, upon the refusal of a creditor to accept payment upon a valid tender being made to him. This deposit takes place under the sanction of the forms of law, and in an office appointed for the purpose; see Code, Bk. iii. tit. 3, art. 1257, 1258, 1259.

(f) Johnson v. Clay, 7 Taunt. 486; 1 Moore, 200; this case has, however, been doubted; see Poole v. Tumbridge, 2 M. &. W. 223; post, 797.

(g) Waistell v. Atkinson, 3 Bing. 290; 11 Moore, 14; per Best, C. J. (h) Post, 801.

(i) Cox v. Brian, 3 Taunt. 95.

(k) Jones v. Flint, 2 P. & Dav. 594. (1) Cropp v. Hambleton, Cro. Eliz. 48; 1 Rol. Ab. 421; Bac. Ab. Tender, (A). As to a tender by a stranger, without the privity of the debtor, see Co. Lit. 206, 207; Watkins v. Ashwicke, 1 Cro. Eliz. 132. Semble, the subsequent assent of the debtor would make the tender valid; see ante, 212, 213; and infra, note (n); also Harding v. Davis, 2 C. & P. 77.