your demand." The plaintiff told him that he need not give himself the trouble of offering it, for he would not take it, as the matter then was in the hands of his attorney. The court held that the tender was good (g).

A person who made a tender, had two bank notes twisted up in his hand, inclosing sovereigns and silver, making the precise sum intended to be paid. He told the creditor what it consisted of, but did not open it before him. Per Best, C. J., “I am of opinion this is a sufficient tender. If the witness had not mentioned the amount, I think, it would not have done (h)." And it seems that if the debtor express his willingness to pay a certain sum, and state he has it in the house, and offer to go up stairs and fetch it, but is prevented by the creditor stating that the debtor need not trouble himself, for it could not be taken, a tender may be effectually pleaded (i).

The dispensation with the production of the money must be express. Where the production was prevented by the creditor leaving the room after the debtor had offered to pay the money, and whilst he was in the act of taking it from his pocket, Lord Tenterden, C. J., thought there was not a sufficient tender (k).

To establish a tender, the defendant proved that he and a friend went to the plaintiff's attorney, and said that he had come to settle the plaintiff's account; that he produced a paper containing a statement of the account, in which he made the balance 57., which, he said, he was ready to pay, but produced no money or notes; and that the plaintiff's attorney said he could not take that sum, as his client's demand was above Sl. Lord Kenyon held that the tender was not sufficient (7).

The clerk told the plaintiff and had left 107. with him, to The plaintiff said he would less than his whole demand.

The defendant left with his clerk 107. for the plaintiff. The plaintiff called, and demanded 167. that the defendant was from home, give the plaintiff when he called. not receive the 107., nor any thing The clerk did not offer the 107.; and the court, on that ground, held that there was no legal tender (m).

The defendant ordered 4. to pay the plaintiff 7. 12s. The latter demanded 87.; on which A. said, that he was only ordered to pay the former sum, which was in B.'s hands. B. put his hand to his pocket, to take out the money, but did not do so, by A.'s desire. At the trial, B. could not say whether he had sufficient money about him, on the above occasion, to pay the 77. 12s., but swore that he had it in his house, at the door of which he was standing at the time. The court held, that this was not a valid tender; as the money should have been actually produced (n).

4. having goods at a pawnbroker's, delivered the duplicate to B., to take them out of pledge. B. took them out accordingly, and paid the amount due on them. On A. sending to B. for the goods, and stating that B. might have the money if he would deliver them up, B. said he had not got them, and refused to tell who had them. The court held, in trover by A. against B., that the latter was not entitled to a tender of the money he had advanced; because A., even if he had made a tender, would not have had the goods delivered to him (0).

It appears that on making a tender, the debtor must not insist upon having a stamped receipt for the money (p), as a condition of his paying it (g).

An offer to pay a sum of money, "if the plaintiff (who claimed a larger sum,) would accept it as the whole balance really due," is not a legal tender, because it is not unqualified. If a defend ant offer to pay the money he considers due, leaving open the plaintiff's right to an ulterior demand, that is sufficient; but an offer to pay, clogged with a condition to be annexed to the acceptance, is inoperative (r).

The common law requires that a tender be made in the current

237. Mr. Starkie, in the 2nd vol. of his valuable Treatise on Evidence (2nd ed. 779), refers to the case of Simmons v. Wilmot and Others, 3 Esp. R. 91, as an authority to show that" where the defendant offered to pay the money as a boon, but accompanied the offer with a protestation against the right of the party to receive it, the tender was held to be insufficient." Sed qu The case does not appear to be a satisfactory authority to the above effect.

coin of the realm (s); or foreign money legally made current by proclamation (t).

By the 3 & 4 W. 4, c. 98, s. 6, “a tender of a note or notes of the Governor and Company of the Bank of England, expressed to be payable to bearer on demand, shall be a legal tender, to the amount expressed in such note or notes, and shall 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 always, that no such note or notes shall be deemed a legal tender of payment by the Governor and Company of the Bank of England, or any branch bank of the said Governor and Company; but the said Governor and Company are not to become liable or be required to pay and satisfy, at any branch bank of the said Governor and Company, any note or notes of the said Governor and Company not made specially payable at such branch bank; but the said Governor and Company shall be liable to pay and satisfy at the Bank of England in London all notes of the said Governor and Company, or of any branch thereof."

Even at common law, a tender in Bank of England notes (u); or in provincial or country bankers' notes (x); or of a draft or check on a banker (y); is valid, if the creditor do not, at the time, object to receive such notes or check as a payment on account of their quality, and object to the quantum only.

7. Of a prior or subsequent Demand to defeat a Tender.-The debtor must have been always ready to pay the money (z). If, therefore, before or after the tender, the creditor has demanded of him payment of the debt, which has been refused, and such demand and refusal be specially replied, the tender will be unavailing (a). By such replication, however, the plaintiff admits that the tender stated in the plea was, in fact, made: and it will be incumbent on him, if he reply a subsequent demand and

(s) A tender of more than 40s. in silver is not good; see 56 G. 3, c. 68, s. 11. It would be good, if not objected to on that account; see infra.

(t) Bac. Ab., Tender, (B. 2); Wade's Case, 5 Rep. 114; Case of Mixed Moneys, Davys, 18.

(u) Grigby v. Oakes, 2 B. & Pul. 526; Wright v. Reed, 3 T. R. 554;

refusal, to prove that he demanded the precise sum stated to have been before tendered to, and refused by, him; for, if he demand any other sum than that tendered, the tender of such sum is not thereby invalidated (b). In an action on a bill of exchange for 107. 4s., accepted by the defendant, the defendant pleaded a tender of 41. 7s. 6d. The plaintiff replied a prior demand of that sum. The only proof of a demand was, that the bill was presented for payment when due, and was dishonoured. The defendant had paid the balance on a subsequent day. The court held, that the proof did not support the issue, as the plaintiff proved no demand of the precise sum tendered (c).

And a demand and refusal, to defeat a tender, must be made by some person who has authority to receive the money for the creditor, and give the debtor a discharge. Therefore, a demand by the clerk of the plaintiff's attorney is not sufficient; although it appears that the attorney himself might effectually require payment (d).

A subsequent application to, and refusal by, one of two joint debtors, is sufficient (e).

It seems, that after a tender has been made, the creditor cannot defeat its effect, by a subsequent application for the money, by letter; a personal demand on the debtor should be made, to give him, at the time of the demand, an opportunity of paying the debt (f). At all events, if the demand were made at the debtor's residence during his absence, it would be necessary to defer issuing the writ until the debtor had reasonable time and opportunity to pay the money (g).

8. Of the Pleadings, &c. on a Tender (h).—A defendant cannot plead the general issue, or any other plea, to the whole declaration, and a tender as to part. No other plea than that of

(b) Coore v. Callaway, 1 Esp. 115, 116; Spybey v. Hide, 1 Camp. 181; see Fabian v. Winston, Cro. Eliz. 209.

(c) Rivers v. Griffith, 5 B. & Ald. 630. See Hume v. Peploe, 8 East 168, in which case the plea and rejoinder were defective. The drawer of a bill has a reasonable time after notice of dishonour to tender the amount of bill, without interest; Walker v. Barnes, 1 Marsh. R. 36; 5 Taunt. 240, S. C.; Chitty, jun. B. 39, 100 b b, 198, S. C. (d) Coore v. Callaway, 1 Esp. 115,

116; Goodland v. Blewith, 1 Campb. 478, note.

(e) Peirse v. Bowles, 1 Stark. N. P. R. 323.

(f) Edwards v. Yeates, Ry. & M. 360, cor. Abbott, C.J.; sed vide Hayward v. Hague, 4 Esp. R. 93, cor. Lawrence, J.

(g) Gibbs v. Stead, 8 B. & C. 528; 2 Man. & R. 547, S. C.

(h) See Plea, 3 Chitty on Pl. 5th ed. 922, 955; replication thereto, id. 1151.

the tender, can be pleaded to the sum alleged to have been offered (k). There would be a gross incongruity, if the rule were otherwise; for, upon a plea of tender, the defendant expressly admits the sum tendered to be due, and brings it into court to be paid to the plaintiff.

The plea must aver that the defendant is, and always has been, ready to pay, (touts temp prist,) from the time the money was payable. It is not sufficient to show only a tender upon a certain day, and a subsequent readiness to pay the money (7). And the plea is bad, upon general demurrer, if an actual tender of the money be not also stated, although the plea contain a profert in curiá (m).

The sum stated in the plea to have been tendered is material and traversable; and care should therefore be taken that the exact sum offered be set forth therein.

It should be pleaded, that the tender was made "before the commencement of the suit." In all the courts, the summons, or capias, is the commencement of the action.

If the defendant intend to deny altogether the contract and facts stated in any particular count, the general issue only should be pleaded thereto, and the plea of tender should not relate to such count (n). And it was held (before the rules on pleading of Hilary Term, 1834, abolished the common rule to pay money into court), that in such case the money should not be paid into court upon the whole declaration, upon a rule to pay money into court in the common form; because such payment, although the plea of tender was applied to part only of the declaration, admitted a special contract laid in another portion thereof (o).

The plea should be signed by counsel, or in the Common Pleas by a serjeant. The plaintiff may sign judgment, as for want of a plea, if the sum tendered be not paid into court (p). This is now considered a fair issuable plea in bar (q).

In debt, the defendant, in pleading a tender, ought to conclude his plea, by praying judgment if the plaintiff ought to have or

(k) Dougall v. Bowman, 3 Wils. 145; 2 Bla. R. 723, S. C.; Maclellan v. Howard, 4 T. R. 194; 1 Saund. 33 c, note.

(1) Giles v. Hart, Salk. 622; Hume v. Peploe, 8 East, 168, suprà.

(m) French v. Watson, 2 Wils. 74. (n) Cox v. Brain, 3 Taunt. 95.

(0) Bulwer v. Horne, 4 B. & Ad. 132; 1 N. & M. 117, S. C. The same principle would apply in pleading payment into court, under the 17th rule on pleading.

(p) Pether v. Shelton, 1 Stra. 638. (q) 1 Saund. 33, note 2; Kilwick v. Maidman, 1 Burr. 59.

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