The averment of what is really due, in cases where the debt accrues by reason of a penalty, has been holden to be traversable', though laid under a videlicet.

If an agreement is entered into for the performance of covenants, with a penalty, and the covenants are broken, the penalty cannot be set off:

To assumpsit for money lent', the defendant pleaded articles of agreement with mutual covenants in a penalty for performance, and shewed a breach whereby the penalty be came due, and offered to set off the same; on demurrer, the court held this plea not within the statute; Lord Mansfield, C. J. observing, that it was contrary to the intention of the acts, that the penalty should be admitted to be set off, when perhaps a very small sum was due for such damages as the defendant had actually sustained.

It will be proper to remark here, that a set-off reducing the plaintiff's demand under 40s. will not affect the jurisdiction of the superior court, so as to entitle the defendant to enter a suggestion on the roll, in order to obtain costs, either under stat. 3 Jac. 1. c. 15. s. 4. ", or under stat. 23 G. 2. c. 33. s. 19." if it appear that a sum exceeding 40s. was due at the time of action brought (103).

i Symmons v. Kuox, 3 T. R. 65.
k Grimwood v. Barrit, 6 T. R. 460.
Nedriff v. Hogan, 2 Burr. 1024. and
Bull. N. P. 180.

m Pitts v. Carpenter, Str. 1191. and 1 Wils. 19.

n Gross v. Fisher, 3 Wils. 49.

It afterwards appeared that the debt designed to be set off was for rent reserved on lease by indenture, which not being mentioned in the notice, the chief justice said, it would be bad on that account likewise, for had this been mentioned, the plaintiff might possibly have shewn that he was evicted, or some other matter, to avoid the demand. Verdict pro querente. N. The preceding case was decided before the stat. 11 G. 2. c. 19.

(102) In country causes it is usual to plead a set-off, in order to save the trouble and expense of proving the service of notice. Tidd's Pract. 584.

(103) The language of the two statutes is different. By the statute of James, if it appear to the judge that the debt to be recovered does not amount to 40s. the defendant shall have costs. By the statute of George, the defendant shall recover double costs, if the jury, upon the trial of the cause, find the damages for the plaintiff under 40s. unless the judge certify that, 1. the freehold, or 2. the title to the plaintiff's land, or 3. an act of bankruptcy

7. Tender.

7. Tender. To an action of assumpsit the defendant may plead non assumpsit as to part of the plaintiff's demand, and a tender before the commencement of the plaintiff's suit as to the rest; but the defendant will not be permitted to plead non assumpsit to the whole declaration, and a tender as to part, because, if the general issue should be found for the defendant, it would then appear on the record, that nothing was due, although the defendant by his plea of tender had admitted something to be due.

A tender may be pleaded to a quantum meruit, although the demand is uncertain. Johnson v. Lancaster, Str. 576.

What shall be a good Tender.-In order to sustain a plea of tender, it is not necessary in all cases to prove the actual production of money, in monies numbered; it will be sufficient to shew that the defendant was in a present condition to substantiate his offer", and that the plaintiff dispensed with the production of the money (104);

Maclellan v. Howard, 4 T. R. 194.
S. P.

o Dowgall v. Bowman, C. B. M. 11. Geo. 3. 3 Wils. 145. and 2 Bl. Rep. 723. Anon. C. B. M. 40 Geo. 3. MSS. p Thomas v. Evans, 10 East, 101.

principally came in question. It does not appear that the court in Gross v. Fisher adverted to this difference. N. Under the Court of Requests' Act, for Southwark, 22 G. 2. c. 47. s. 6. if the debt which was originally above 40s. be reduced below 40s. by part payment before action brought, the defendant will be permitted to enter a suggestion. Clark v. Askew, 8 East, 28. So under the London Court of Requests' Act, if the debt be reduced by part payment below 51. before action brought, the defendant will be permitted to enter a suggestion. Horn v. Hughes, 8 East, 347.

(104) Where there is a dispute as to the amount of the demand, the plaintiff, by objecting to the quantum, may dispense with a tender of the specific sum; there should, however, be an offer to pay by producing the money, unless the plaintiff dispenses with the tender by expressly saying, that the defendant need not produce the money as he would not accept it; for, though the plaintiff might refuse the money at first, yet, if he saw it produced, he might be induced to accept it. Per Kenyon, C. J. Middlesex Sittings, M. T. 42 G. 3. 4 Esp. N. P. C. 69. "I take it to be clear beyond a doubt, that if the debtor tenders a larger sum than is due, and asks change, this will be a good tender, if the creditor

but there must be either an actual offer of the money produced, or the production of it must be dispensed with by the express declaration or equivalent act of the creditor. To an action of assumpsits, the defendant pleaded a tender of 10.; 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 on going from home for a time, left the 107. with his clerk there. Some time after the plaintiff called and demanded 16. 8s. 11d. which he said he supposed Evans had received; when the clerk told him that Evans was gone from home, and had left with him 10/. to give to the plaintiff when he called. The plaintiff said he would not receive the 101. nor any thing less than his whole demand. The clerk did not offer the 107. The court were of opinion the evidence was insufficient; Lord Ellenborough, C. J. observing, "it is expressly stated, that the clerk did not offer the 107. He 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.”

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 him 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.

A tender of foreign money, made current by royal proclamation, is equivalent to a tender of lawful money of England'; but a tender of bank-notes, if objected to at the time (105), is not a good legal tender', nor has stat. 37 Geo. 3.

q Thomas v. Evans, ante, p. 148. r Douglas v. Patrick, 3 T. R. 683.

s 5 Rep. 114. b.

t Grigby v. Oakes, 2 Bos. and Pul. 526,

does not object to it on that account, but only demands a larger sum. There is not any occasion to produce the money, if the creditor refuses to receive it on account of more being due." Per Kenyon, C. J. London Sittings, after M. T. 32 G. 3. Peake's N. P. C. 88.

(105) "This court has never yet determined that a tender in bank-notes is at all events a good tender; but if they have been offered, and no objection has been made on that account, this court has considered it to be a good tender." Per Buller, J. in Wright v. Reed, B. R. H. 30 Geo. 3. 3 T. R. 554. "It has been thought that the courts went a great way in holding a tender in bank-notes

c. 45. (commonly called the Bank Act) made any alteration in the law in this respect (106).

Defendant, being indebted to the plaintiff in 37. 10s. produced to him a £5 bank note, and desired him to take £310s, out of that. It was holden, that it was not a good tender".

An offer to pay a sum of money with a condition that it shall be accepted as the whole balance due, when a larger sum is claimed, does not amount to a legal tender of the sum offered to be paid *.

A tender of money to an agent authorised to receive payment', is a good tender to the creditor himself.

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, before tender made, will not deprive the defendant of the benefit of his tender, if such tender was made before the actual commencement of plaintiff's suit. Hence it is not any answer to a plea of tender before the exhibition of the plaintiff's bill, that the plaintiff had before such tender retained an attorney, and instructed him to sue out a latitat against the defendant, and that the attorney had accordingly applied for such writ, before the tender, which writ was afterwards sued out.

Of the Form in which a Tender must be pleaded.Where the money is due and payable immediately by the agreement,

u Betterbee v. Davis, 3 Camp. N. P. C. 70. per Le Blanc, J.

x Evans v. Judkins, 4 Campb. 156.

P. C. 477. see also Moffat v. Parsous, 5 Taunt. 307.

z Briggs v. Calverly, s T. R. 629.

y Goodland v. Blewitt, 1 Camp. N. a Giles v. Hartis, Ld. Raym. 254.

to be a good tender, if not objected to at the time." Per Chambre, J. in Grigby v. Oakes, 2 Bos. and Pul. 526.

(106) By stat. 37 Geo. 3. c. 45. § 9. affidavits to hold to bail, must allege that no offer has been made to pay the sum sworn to in notes of the governor and company of the Bank of England, expressed to be payable on demand, (fractional parts of the sum of twenty shillings only excepted.) But by stat. 43 G. 3. c. 18. persons applying to be discharged upon common bail, by reason of any defect in the allegation required by the preceding statute, must make proof by affidavit, that the whole sum, for which they have been holden to bail, was offered to be paid, either wholly in notes of the governor and company of the Bank of England, or partly in such notes, and partly in lawful money of this kingdom. See stat. 52 Geo. 3. c. 50.

the party pleading a tender must shew that he was "always ready," from the time when the cause of action accrued (107). Hence to an action of indebitatus assumpsit, where 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, and then was ready: on demurrer, the plea was holden 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.

So where to an action by the indorsee of 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, the defendant, tendered the whole money then due upon the bill with interest, in respect of the damages sustained by the non-performance of the promise; and that he always, from the time of making the tender, had been, and still was, ready to pay, &c. On demurrer, the plea was holden 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 a plea of tender, and that it was one of those land marks in pleading which ought not to be departed from.

A plea that the defendant is ready, and has always been ready, with a profert in curiâ, but not averring a tender, will be bad on general demurrer.

It is not necessary that a plea of tender to an action of indebitatus assumpsit should answer a special request laid in the declaration on a day subsequent to the day on which the promise is laid; because such request is surplusage, and therefore the day, on which it is made, is wholly immaterial.

At what Time a Tender must be pleaded.—It is a general rule, that a tender cannot be pleaded after any kind of imparlance, because the imparlance is contradictory to that part of the defendant's plea in which he alleges, that he was always ready. A tender must therefore be pleaded before

b Sweatland v. Squire, Salk. 623. c Hume v. Peploe, 8 East, 168.

d Ld. Raym. 254. and vid. Wood v. Ridge, Fort. 376.

e French v. Watson, C. B. 2 Wils. 74.

f Giles v. Hart, Salk. 622. and Carth,

413.

g Giles v. Hart, Salk. 622. and Carth.

413.

(107) But 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. Hart, Salk, 622.