PRECAUTION CHAP. V. the necessity for afterwards calling numerous witnesses, and ARY MEASURES. Complication in proof of every link in the chain of evidence, to let the very same two persons who saw the holder sign his name to the original and to the duplicate letter or notice, deliver the same or put the same into the head or proper post-office, and not to employ, as is generally the case, any intervening person; (f) for if several persons intervene, all must be called as witnesses in case of the trial of an action, and if any one be omitted the proof will be insufficient. (g) If a verbal notice only is intended to be given or left, it must be in substance in the same terms as a written notice and afford the same information. It may be left at his counting-house or residence, or delivered to the party himself, or to any person at his counting-house or residence, and apparently there as a clerk or one of the family domiciled there; (h) and when during the usual hours of business, on the proper day, no person is found at the counting-house to receive the notice, it suffices to be prepared to prove that diligent inquiry there was made on that day for the purpose of giving notice, though ineffectual; (i) and where an ineffectual attempt to give notice has been made at the counting-house, it is not also necessary to attempt to give or leave a notice at the residence of the indorser. (i) However, the more prudent course, though not absolutely necessary, is to leave a written notice as well at the residence as at the count (f) Hawkes v. Haller, 4 Bing. 715; Hagendon v. Reed, 2 Campb. 479; Hetherington v. Kemp, 4 Campb. 193. (g) Toosey v. Williams, Mood. & M. 129. In a case in December, 1827, G. H. K. B., Scarlett, Attorney-General, objected that the practice of a private office as to leaving letters in a box, was inadmissible, though according to a decision of Lord Ellenborough, when Garrow was Attorney-General, the practice of a public office is admissible. Scarlett objected that in a private office it should be otherwise, as the principal might purposely subtract the particular letter. Lord Tenterden said," In this case there is a person intervenes between the copying clerk in the letter book and the person whose duty it is to take it to the post office. I therefore reject the evidence of the practice of the office." Toosey v. Williams, Mood. & M. 129. Where the practice of the defendant's counting-house was, that the clerk, after copying a letter into the letter-book, returned it to the defendant to seal, and that he or another clerk carried all letters to the post-office, but there was no particular place of deposit in the office for such letters, and neither of the clerks had any recollection of the particular letter offered in evidence, though they swore that they uniformly carried all letters given them to carry :--Held, that the entry in the clerk's writing in the letterbook of a letter to the plaintiff, could not be read as proof of such letter having been sent to the plaintiff. Lord Tenter den, C. J. :-" I have great reluctance to refuse this evidence, but am bound to do it. The practice here differs from that in most counting-houses. If the duty of the clerk had been to sce the letters be copied carried to the post-office, it might have done; but here there is something else to be done afterwards, and that by the defendant. There is not enough shewn to render the letter admissible." Verdict for the plaintiff. Hagendon v. Reed, 3 Campb. 379. Hetherington v. Kemp, 4 Campb. 193. (h) Crosse v. Smith, 1 Maule & Selwyn, 545. (i) Bancroft v. Hall, Holt, C. N. P. 476; Crosse v. Smith, 1 Maule & S. 545; Goldsmith v. Bland, Bayl. 8th ed. 246; Chitty, 8th ed. 502, n. (e). ing-house of every indorser, (k) so as to avoid the possibility of a defence that the parties have not in fact received in due time ample notice. 11. Cases very frequently occur in which a party may in fact refuse to pay money or perform some other act on account of some actual or pretended risk he would thereby incur of being thereafter sued for the amount by some third person; in these cases it is sometimes necessary and always advisable to remove all pretence of objection by tendering adequate indemnity. With respect to lost bills, there is an express statute prescribing the nature of the indemnity in certain cases. (1) When a bill or note continues lost there is in general no remedy at law; but if adequate indemnity has been tendered and yet payment withheld, a court of equity will enforce payment, and subject the party to costs when the tendered indemnity has clearly been sufficient. (m) The same principle applies to other cases, and the offer of adequate indemnity will in general strongly incline a court and jury in favour of the party whose offer has been rejected. In these cases it suffices, first, to send a description of the proposed security and of the names and address of the proposed obligors; and if not expressly rejected then the draft of the proposed security should be sent for approbation, and if this be rejected or unattended to, it will not be necessary to tender either the proposed security already executed, or even engrossed, stamped, on parchment or paper. (n) We might here notice the right to retake goods obtained by false pretences, or under colour of a fraudulent purchase, or under colour of any other contract that has turned out to have been invalid, and the right to stop goods in transitu upon discovery of the insolvency of the purchaser before they have actually got into his possession. But precautionary measures of that nature it is apprehended will be more properly considered when we notice the preventive remedies by act of the parties after an injury has already been completed, or at least had inception, and which will be found in the seventh chapter. (k) Crosse v. Smith, 1 Maule & S. 545; Bancroft v. Hall, Holt, C. N. P. 476. (1) 9 & 10 Wm. 3, c. 17, s. 3. (m) Walmsley v. Child, 1 Ves. sen. 338, and other cases, Chitty on Bills, (n) Jones v. Barclay, 2 Dougl. 684; CHAP. V. PRECAUTIONARY MEASURES. 11. Of tender of indemnity. PRECAUTION VI. Of precau pected defend aut. CHAP. V. VI. There are also many precautionary measures to be ARY MEASURES. adopted on behalf of persons likely to become defendants, such as tenders, whether in cases of contract or in cases unconnected tions by an ex- with contract, or in compensation for an involuntary trespass,(0) or by Justices and others under the general act, (p) or under particular aets allowing certain officers, as those of the Customs, (q) or Excise, (r) &c. to plead a tender or pay the amount of the supposed damages into court. So if a party likely to be sued in the Exchequer by bill for an account previously tender an adequate sum, he may then in some cases be excused the payment of costs. (s) Tender how to be made. In making a Tender in either of these cases errors frequently occur either in respect of the money not having been sufficiently produced or offered to be paid, or of some condition or qualification having improperly accompanied the offer, and (0) 21 Jac. 1, c. 16, s. 5, enacts, "that in all actions of trespass quare clausum fregit, hereafter to be brought, wherein the defendant or defendants shall disclaim in his or their plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence or in voluntary, the defendant or defendants shall be permitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for stch trespass before the action brought; whereupon or upon some of them the plaintiff or plaintiff's shall be enforced to join issue; and if the said issue be found for the defendant or defendants, or the plaintiff or plaintiff's shall be nonsuited the plaintiff or plaintiffs shall be clearly barred from the said action or actions, and all other suits concerning the same. But this act only ap plies to trespasses to land, and not to trespasses to personal property. Bailee v. Vivash, 1 Stra. 549; nor to trespasses committed by a defendant himself, Id. ibid.; 3 Lev. 37; Vin. Ab. Trespass, S. a. 542; see the pleadings on this statute, Williams v. Price, 3 Bar. & Adol. 695. (p) 24 Geo. 2, c. 44, s. 2, enacts," that it shall and may be lawful to and for such justice of the peace, at any time within one calendar month after such notice given as aforesaid, to tender amends to the party complaining, or to his or her agent or attorney, and in case the same is not accepted, to plead such tender in bar to any action to be brought against him, grounded on such writ or process, toge ther with the plea of not guilty, and any other plea with leave of the Court; and if upon issue joined thereon the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant; and in such case, or in case the plaintiff shall become nonsuit, or shall discontinue his or her action, or in case judgment shall be given for such defendant or defendants upon demurrer, such justice shall be entitled to the like costs as he would have been entitled unto in case he had pleaded the general issue only; and if upon issue so joined the jury shall find that no amends were tendered or that the same were not suffi cient, and also against the defendant or defendants on such other plea or pleas, then they shall give a verdict for the plaintiff and such damages as they shall think proper, which he or she shall recover, together with his or her costs of suit." Sect. 4, enacts, "that in case such justice shall neglect to tender any amends, or shall have tendered insufficient amends before the action brought, it shall and may be lawful for him, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall see fit, whereupon such proceedings, orders and judgments shall be had, made and given, in and by such court, as in other actions where the defendant is allowed to pay money into Court; and see Chit. Coll. Stat. 648, 649. (9) 6 Geo. 4, c. 108, s. 95, 96, Cus toms. (r) 28 Geo. 3, c. 37; 7 & 8 Geo. 4, c. 53, s. 116, 117, Excise; and see 6 Geo. 4, c. 114, s. 66, as to officers in British possessions abroad. (s) 2 Madd. Ch. Pr. 556, 557; but see ante, 499, and post, 509, n. (s); Pearse v. Green, 1 Jac. & W. 135. which the law considers to vitiate the tender. Properly the exact amount of what is admitted to be recoverable should be produced and counted in English gold and silver, (the latter not exceeding forty shillings,)(t) or in foreign coin made current by proclamation; (u) and the amount should be named to the party to whom the offer is to be made, and if possible the money laid down and counted in his presence ; (x) though if he, after having been told that such a sum is about to be paid to him, declare he will not take it, because more is due, that dispenses with the actual production of the money ;(y) but a mere dispute respecting the amount of the debt, without expressly dispensing with the production, will not excuse the omission, because if he had seen the money produced he might have been induced to accept it. (2) A tender of bank notes, (a) or even a provincial bank note, (¿) is sufficient, unless objected to at the time on that account. (b) Properly the precise amount of pounds, guineas and fractions should be produced in gold, and shillings or sixpences, and not exceeding five-pence threefarthings in copper, so as to constitute the precise amount of the debt; and although it has been held that a tender of 20 guineas, with a request to return the difference of 15 guineas, is a good tender as to 15 guineas, because the creditor has only to select so much and to restore the residue; it would be otherwise, if the tender were in bank notes of a larger amount than the debt, and would be insufficient, because it may be physically impossible for the creditor to take what is due and to return the difference. (c) And it is the only safe course to tender the fraction of a pound in specie, when accompanied with a tender of a bank note or sovereign. If, however, a creditor, to whom a tender of a bank note is made in payment of a fractional sum, object to receive it merely on the ground of the sum offered to be paid being less than the sum claimed, then although the creditor be required to return the difference between the bank note and the fractional sum, it has been held CHAP. V. PRECAUTION ARY MEASURES. (t) 56 Geo. 3, c. 68. (u) Wade's case, 5 Coke's Rep. 114, n. (b). (x) Brady v. Jones, 2 Dow. & Ry. 305. (y) Thomas v. Evans, 10 East, 101; 3 Bla. C. 304, n. 33; Douglas v. Patrick, 3 T. R. 683. (z) Dickinson v. Shee, 4 Esp. R. 68. The language of the ancient plea, averring a tender, is obtulit, &c. (a) Per Buller, J. in Wright v. Reid, 3 T. R. 554; Grigby v. Oakes, 2 B. & P. 526. (b) Polyglass v. Oliver, Law J. 5, Excl. M. T. 1831; Chitty on Bills, 8th ed. 554, 555, and Id. 801; Peake's Evi. N. P. Sd ed. 259. (c) Bettershee v. Davis, 3 Campb. 70; Spigbey v. Hide, 1 Campb. 181; Robinson v. Cook, 6 Taunt. 336. CHAP. V. to be a sufficient tender. (d) A tender of a part and proposed PRECAUTION ARY MEASURES. Set-off as to the residue is insufficient. (e) Written notice of a tender. The tender must be unconditional and unqualified, because if the creditor were to accept it, the claim for any residue might be thereby prejudiced; therefore a tender of a named sum, insisting at the same time on a receipt in full, (f) or upon condition that it shall be received as the whole balance due, (g) or that a particular document shall be given up to be cancelled, is insufficient. () The tender should be to pay on behalf of the debtor a named sum, produced and offered to be handed over to the creditor without more; and to avoid the risk of the counsel for the plaintiff being able on cross-examination of the witness called to prove the tender, to lead him to say that it was in some respects conditional or qualified, it would be as well to accompany the tender with a letter in the form stated in the note, and the person tendering the money should read and subscribe such letter as a witness immediately before he make the tender, and the creditor should have notice to produce the same on the trial; and a duplicate and the delivery of the original, and the service of the notice to produce, should be proved on the trial; for after the witness has thus read and subscribed such a letter, a jury would scarcely believe that he verbally vitiated the tender by annexing to it any qualification. (i) A tender cannot be effectually pleaded if at any instant after the debt became due the party was not ready to pay, and espe (d) Saunders v. Graham, Gow's Ca. Ni. Pri. 121; Black v. Smith, Peake's R. 88; Bettersbee v. Davis, S Campb. 70; Robinson v. Cook, 6 Taunt. 336. (e) Brady v. Jones, 2 D. & R. 305. mand," and at the same time delivered a that due is offered, and is accompanied by a counter demand in writing by the defendant upon the plaintiff. In both these respects this is an insufficient tender, and therefore the plaintiff is intitled to retain his verdict. (f) Glasscott v. Day, 5 Esp. R. 48; Huxham v. Smith, 2 Campb. 21; sed vide Cole and another v. Blake, Peake's R.179; Starkie's Evid. tit. Tender. (g) Evans v. Judkins, 4 Campb. 156. (h) Huxham v. Smith, 2 Campb. 21. 5 May, 1833. (i) Sir,-The bearer is directed by me to pay or tender to you the sum of £27: 10s. 6d. (twenty-seven pounds, ten shillings and sixpence,) in respect of the debt or sum of money claimed by you, and such tender and offer is and will be made unconditionally and without any reserve, or any condition or terms whatsoever; and to avoid all possible doubt, I beg you to understand that the same sum of money is to be offered, paid and received without prejudice to any claim you may have on me for any larger or different sum of money. Dated this 5th day of May, A. D. 1833. Your's, &c. A. B. |