Tenant in Fee.

See also tit. Will.

DoE d. KNOTT v. LAWTON, E. T. 1838. C. P. 4 Bing. N. S. 455. THE testator devised as follows:-“ I give and bequeath to my sons, Joshua and James, my estates that I now occupy, together with the factory, and all the edifices and appurtenants thereon, except the house I now occupy, and five yards for a passage, being together eighteen yards in front and about twenty yards back, with the cottages thereon, occupied by C. and C., and all other conveniences thereon, which I give to my daughters, Martha and Alice, jointly, share and share alike.

The Court held, that, as the first devise of " my estates" &c. to the sons, James and Joshua, would, standing per se, carry a fee, so the devise of the excepted part carried an estate of a like quality to the daughters.

That which is excepted car

ries the same quantity of

estate as that from which it was excepted*.

Tenants, Joint.

See also tit. Will.

MORRIS v. BARRETT, T. T. 1829. Ex. 3 Y. & J. 384. A FATHER devised real and personal estate to his two sons in terms giving a joint estate, and appointed them joint executors; they continued in possession and carried on the farm jointly, and shared the profits in common, without any actual severance or division, and purchased other lands with the surplus in the name of

one.

The Court held, upon his death, that, as to the property derived from the father, they remained joint tenants, but as to all the afterpurchased estates they were tenants in common.

Tenant in Tailt. See also tit. Will.

Where property was left to two as joint tenants, and

they purchased property with the proceeds:

Held, that,

as to the property subsequently pur chased, they were tenants in commont.

nants in common cannot maintain a joint action to recover double value under 4 Geo. 4, c. 23, if a joint demise, which is a fact for the jury, be not proved. (Wilkinson v. Hall, E. T. 1835, C. P., 1 Bing. N. S. 713).

* Where, in ejectment, the lessor of the plaintiff commenced his title by shewing a conveyance in fee from S. in 1807, evidence, that S. was in possession of the property in the years 1806 and 1807, is evidence of his seisin in fee, unless there be something to shew that he had a less estate. (Doe d. Graham v. Penfold, 1838, N. P., 8 C. & P. 536).

+ To debt for rent by a joint tenant as survivor the defendant may plead they were tenants in common. (Burne v. Cambridge, 1836, N. P., 1 M. & Rob. 539).

Settlement to the use of J. G. for life, remainder to the use of the first son of the body of J. G. by A. S., his intended wife; and for default of such issue to the use of the second, third, and other sons of the body of J. G. by A. S., severally and successively as they shall be in seniority of age, and of the several heirs male of their several bodies; and for default of such issue, then, in case A. S.

A demand on

the wife of the

tenant on the premises is sufficient.

Tenant at Will.

See, also, tit. Landlord and Tenant.

DoE d. BLAIR v. STREET, M. T. 1834. K. B. 4 N. & M. 42. A PARTY, upon a contract of purchase, had been let into possession, and had let to B., who had underlet a part to C., as tenant at will.

The Court held, that a demand of possession upon the wife of C. upon the premises, was sufficient to determine the tenancy at will, and to entitle the lessor of plaintiff to recover the premises in the possession of C.; but that a demand on the wife of B. of the premises was not sufficient, the verdict having been obtained against B. and C., who defended for different parts; the Court refused to amend the postea by confining the verdict to the particular premises for which C. defended; B., having also defended as landlord of C.'s premises, could only rely on title, and could not take advantage of any defect in the demand of possession.

Tender.

I. RELATIVE TO IN WHAT CASES IT MAY BE MADE, p. 487.

II. RELATIVE TO BY WHOM MADE, p. 487.

III. RELATIVE TO TO WHOM MADE, p. 487.

IV. RELATIVE TO HOW MADE, AND WHAT AMOUNTS
TO, AND AT WHAT TIME, p. 487.

V. RELATIVE TO THE EFFECT OF, AND EFFECT OF
ACCEPTING, p. 488.

VI. RELATIVE TO THE PLEA, AND BRINGING THE
MONEY INTO COURT, p. 489.

VII. RELATIVE TO THE REPLICATION, p. 489.

VIII. RELATIVE TO THE EVIDENCE, p. 489.

IX. RELATIVE TO THE COSTS, p. 489.

should be enceinte by J. G., to the use of J. P., till A. S. should be delivered, in trust for after-born child or children; and in case such should be a son or sons, to the use of such after-born son and sons, severally and successively as they should be in priority of birth, and the heirs male of the body and bodies of such after-born son and sons :-Held, that the first son of J. G. by A. S., born during his life, took an estate tail. (Galley v. Barrington, M. T. 1824, C. P., 2 Bing.

I. RELATIVE TO IN WHAT CASES IT MAY BE MADE*.

II. RELATIVE TO BY WHOM MADE†.

III. RELATIVE TO TO WHOM MADE‡.

IV. RELATIVE TO HOW MADE, WHAT AMOUNTS TO,
AND AT WHAT TIME.

FINCH v. BROOK, M. T. 1834. C. P. 1 Bing. N. S. 253; S. C. 1 Scott, 70.

UPON an issue of tender, the jury specially found, that the defendant's attorney put his hand into his pocket and said, "I am come to pay you the which the defendant owes you," but did not produce the money; to which the plaintiff said, "I can't take it; the matter is now in my attorney's hands."

The Court held this not to warrant a judgment for the defendant, although upon the matter the jury might have found a dispensation.

To an action by indorsee against acceptor of a bill of exchange, the defendant pleaded, that, after the bill became due, he tendered plaintiff the amount of the bill with interest:-Held bad upon demurrer. (Poole v. Crompton, H. T. 1837, Ex., 5 D. P. C. 468).

† Although made by a stranger, it must be taken to be made on behalf of the person who owed the money. (Cheminant v. Thornton, T. T. 1825, N. P., 2 C. & P. 50).

If an attorney send a letter to demand payment, and the debtor make a tender to him, that is a good tender, unless the attorney disclaims his authority at the time: and if the attorney be absent he is bound by the acts of those whom he allows to represent him at his office; therefore, after such a letter being sent, a tender to the clerk of the attorney at his office (the attorney being absent) is good. (Wilmot v. Smith, M. T. 1828, N. P., 1 M. & M. 238; S. Č. 3 C. & P. 453). But a tender made to the managing clerk of the plaintiff's attorney, who at the time disclaims authority from his master to receive the debt, is insufficient. (Bingham v. Allport, H. T. 1833, K. B., 1 N. & M. 398). So, a tender made to a mere collector to a bankrupt's estate is insufficient, he having no authority to take a less sum. (Blow v. Russell, 1824, N. P., 1 C. & P. 365).

§ Where the party held the notes and money twisted in his hand, and stated what it consisted of, though not opened, it was deemed sufficient. (Alexander v. Brown, 1824, N. P., 1 C. & P. 288; S. P. Leatherdale v. Sweepstone, T. T. 1828, N. P., 3 C. & P. 342). So, if, at an interview between plaintiff and defendant, where defendant was willing to pay £10, a third person present offer to go up-stairs and fetch that sum, but is prevented by the plaintiff's saying he cannot take it, such offer is a good tender; and although the defendant did not at the time take notice of what was done, yet his pleading it afterwards is a sufficient ratification of the act. (Harding v. Davies, T. T. 1825, N. P., 2 C. & P. 77). So, "I am instructed by the defendant to say that £15 is more than is due, but that you may have it," is a good tender, the money being produced. (Thorpe v. Burgess, T. T. 1840, B. C., 8 D. P. C. 603). A tender, to be good, must not be clogged by any conditions. The attorney of A. put down £18, and said to the other party, "I tender you £18 for Mr. M.":-Held, that this was a good tender. (Jennings v. Mayer, E. T. 1837, N. P., 8 C. & P. 61). So, a debtor went to his creditor, and, procuring a sum exceeding the debt, asked how much was due. The latter refused to tell him, when the debtor laid the money on a desk, and desired the creditor to take what was due:-Held, a good legal

The money should be produced, unless be dispensed the production

with§.

A tender is not equivalent to payment, so as

V. RELATIVE TO THE EFFECT OF, AND EFFECT OF
ACCEPTING*.

WAISTELL v. ATKINSON, M. T. 1825. C. P. 3 Bing. 289.

THE defendant having pleaded a tender as to part, which he paid into Court, and non assumpsit as to the residue, and the plaintiff having taken the money out of Court, proceeded to trial; and the

tender. (Bevan v. Rees, T. T. 1839, Ex., 7 D. P. C. 510). A tender is not vitiated by the person making it saying, at the time of making it, that it was all the defendant considered to be due. (Robinson v. Ferreday, 1839, N. P., 8 C. & P. 753).

An offer to pay a given sum is of no avail unless the party has the means of payment at the time, if accepted. (Strong v. Harvey, M. T. 1825, C. P., 3 Bing. 304).

If a tender is made by a cheque, contained in a letter requesting a receipt in return, and the plaintiff sends back the cheque, and, without objecting to the nature of the tender, demands a larger sum, it is a good tender. (Jones v. Arthur, E. T., 1840, B. C., 8 D. P. C. 442). But a tender of a cheque is of no avail either in payment of a debt or in performance of a condition precedent on a special contract. (Clarke v. King, E. T. 1826, N. P., 2 C. & P. 286). A tender of a sum in full of plaintiff's demand," held insufficient. (Cheminant v. Thornton, T. T. 1825, N. P., 2 C. & P. 50). It should leave it open to the one party to say that more is due, and to the other that the sum tendered is sufficient. (Peacock v. Dickerson, T. T. 1825, N. P., 2 C. & P. 51, n.) An inquiry if the party had a receipt, and no actual offer of the money, though produced, is not sufficient. (Ryder v. Lord C. Townsend, M. T. 1826, K. B., 7 D. & R. 119). A plea of tender is not supported by proving that the defendant took a sum of money out of his pocket, and said to the plaintiff, "If you will give me a stamped receipt I will pay you the money," as by the statute 43 Geo. 3, c. 126, the payer of money may provide the stamp, and charge for it, and a tender must always be uncondi tional. (Laing v. Meader, 1824, N. P., 1 C. & P. 257; S. P. Griffith v. Hodges, 1824, N. P., Id. 419). A tender, to be good, must be unconditional; so that, if the plaintiff take the money, and there be more due, he may still bring an action for the residue. Therefore, where a plaintiff offered to take a sum tendered in part of his demand, and the defendant would only allow him to take it "as a settlement":-Held, not a good tender. (Mitchell v. King, M. T. 1833, N. P., 6 C. & P. 237). If a person offer a sum as all that is due," it is not a legal tender. (Sutton v. Hawkins, 8 C. & P. 259). So, insufficient to tender, if party will accept in full of all demands. (Gordon v. Cox, 1835, N. P., 7 C. & P. 172). So, tender no avail, where offer accompanied with a requisition that the party should sign a receipt expressing that it was received as the balance of the plaintiff's demand. (Higham v. Baddeley, 1820, N. P., 1 Gow, 213). Where the sum tendered was as for half a year's rent, which the plaintiff's agent refused:- Held, only a conditional tender, as, if taken, involving an admission of the amount of rent, and therefore bad. (Marquis of Hastings v. Thorley, 1838, N. P., 8 C. & P. 573). Where the words of the tender were, "I have called to tender £— in settlement of R.'s bill:"--Held, that it was for the jury to say if the offer was conditional or not. (Eckstein v. Reynolds, 2 N. & P. 256).

Where the offer in payment of 137. 148. 2d. was £14 in bank-notes and sove. reigns, and the sum mentioned, but which the party refused to accept, but made no objection to the sum offered not being the precise amount:-Held, sufficient; and that it was unnecessary to get the change and offer the precise sum. (Atkin v. Acton, H. T. 1830, N. P., 4 C. & P. 208). The production of a larger sum suffices, if no objection be made on that ground. (Cadman v. Lubbock, M. T. 1824, K. B., 5 D. & R. 289).

Semble, a tender of amount, after an attorney has written for payment, without offering costs of letter, sufficient. (Kirton v. Braithwaite, E. T. 1836, Ex., 1 M. & W. 310).

A party, by accepting a sum properly tendered, does thereby compromise his future claim to a larger sum, which he would do if he took a sum offered "as all that was due." (Sutton v. Hawkins, 1838, N. P., 8 C. & P.

plea of tender was found for the defendant, the balance proved on
the plea of non assumpsit was under 408.
The Court held, that the defendant could not enter a suggestion
on the roll to deprive the plaintiff of his costs, under the London
Court of Requests Act, 39 & 40 Geo. 3, c. 104.

to authorize a suggestion for costs under Court of Re

quests Act.

VI. RELATIVE TO THE PLEA OF, AND BRINGING THE
MONEY INTO COURT *.

VII. RELATIVE TO THE REPLICATION +.

VIII. RELATIVE TO THE EVIDENCE.

DEAN v. JAMES, H. T. 1833. K. B. 1 N. & M. 392. IN assumpsit for goods sold, on a plea of tenderThe Court held, that a plea of a tender of 201. is supported by evidence of the tender of a larger sum, though such larger sum was tendered as the sum which the creditor was to receive, and not as the sum out of which he was to take the 201.

Tender of larger sum than amount to be received supports plea of

less sum.

IX. RELATIVE TO THE COSTS ‡.

* To a declaration in debt, the defendant pleaded as to 157., that the plaintiff ought not to have or maintain his aforesaid action thereof against him, to recover any damages by reason of the non-payment of the said sum of 151., because he tendered that sum:-Held, sufficient. (Willis v. Prudht, T. T. 1839, Ex., 7 D. P. C. 460). Where, in indebitatus assumpsit, the defendant pleaded payment of a sum, parcel of several sums &c., and pleaded also a tender of another sum, parcel &c.:-Held, that the latter plea was good, without alleging that the tender was made after the payment. (Jones v. Owen, T. T. 1836, K. B., 6 N. & M. 620; S. C. 5 Ad. & E. 222).

In an action of debt, the defendant pleaded the general issue as to part, and as to the other part a tender, but omitted to pay the money into Court; judg ment having been on that account signed as for want of a plea, the Court set aside the judgment for irregularity. (Chapman v. Hicks, E. T. 1834, Ex., 2 D. P. C. 641).

Where the issue is upon a fresh demand, the proof of a letter being sent requesting the money is not sufficient, as the party is entitled to have an oppor tunity of paying the money demanded. (Edwards v. Yeates, H. T. 1826, N. P., 1 R. & M. 360; see 1 Camp. 478, n.)

In an action of debt, for a sum exceeding 207., the defendant pleaded, as to part, a tender before action brought, and to the residue, nunquam indebitatus. The money paid into Court on the plea of tender was accepted, and a nolle prosequi entered as to that, and at the trial the plaintiff had a verdict for a balance of 137.:-Held, that the costs must be taxed on the reduced scale applicable, according to the "directions to taxing officers," Hilary Term, 4 Will. 4, to a recovery of a sum under 201. (Dixon v. Walker, M. T. 1840, Ex., 8 D. P. C. 887; S. C. 7 M. & W. 214). Where the plaintiff refused to accept a less sum, tendered in discharge of debt and cost, but afterwards consented, the Court refused to deprive him of the intermediate costs, there appearing to be nothing vexatious or intentionally oppressive. (Hatchard v. Hague, T. T. 1827, C. P., 12 Moore, 66).