to a landlord, even after the latter has distrained, through the medium of a broker (p). And where a creditor told his clerk, previously authorised to receive money, not to receive a sum, if offered him by a certain debtor, for that he had put it into the hands of his attorney; and the clerk, on tender made, refused to receive the money, and assigned the reason; it was held, that this was a good tender to the principal (7). A tender of damages recovered, and for which the defendant is in execution, may be made to the plaintiff's attorney upon the record (»).

In an action for work and labour, there was a plea of tender, whercon issue was joined. The defendant proved that he sent the money by his servant to the plaintiff's house. The defendant's servant swore that she carried it to the plaintiff's house, and having seen a servant there, who informed her that her master was at home, she delivered the money to that servant, to be delivered to her master; that the servant took it, and went into the house, as she supposed, to deliver it to the plaintiff, and returned with an answer that he would not receive it, but that she must go to his attorney. Lord Kenyon held that this was evidence to be left to the jury, from which they might infer that a tender was made (s).

After an attorney has been authorised by his client, the creditor, to apply for payment, and has accordingly written to demand it, a tender to such attorney will be valid: and if the attorney be absent from his office, it seems that a tender to a person therein, to whom the debtor is referred by one of the clerks, and who does not decline to receive the money, on the ground that he has no authority to receive it, will also be good (t).

If there be several creditors to whom the money is jointly due, a tender to one of them is good; but such tender should, in pleading, be stated as a tender to all the creditors (u).

A tender to an executor, even before he has proved the will, is good, provided he afterwards prove it (x).

477. Quære, whether a broker employed to sell goods has authority to receive payment or a tender of the price; Jackson v. Jacob, 5 Scott, 79; 3 Bing. N. C. 869, S. C.; ante, 745.

(p) Smith v. Goodwin, 1 Nev. & M. 371; 4 B. & Ad. 413, S. C.

(g) Moffat v. Parsons, 5 Taunt. 307. (r) Crozer v. Pilling, 4 B. & C. 28, 29; 6 D. & R. 132, S. C.

(s) Anon. 1 Esp. 349.

(t) See Willmot v. Smith, 3 C. & P. 453; Moo. & M. 238, S. C.; Kirton v. Braithwaite, 1 M. & W. 310. See Barrett v. Deere, Moo. & M. 200, cited ante, 745.

(u) Douglas v. Patrick, ST. R. 683. (x) Eq. Cas. Ab. 319; Bac. Ab. Tender, (E).

4. The amount to be tendered.—It is a clear rule that the debtor must tender the full amount of the debt. A tender of part is, in law, a nullity; a creditor not being bound to accept less than the whole of his demand. A creditor might, before the late act abolishing arrest for debt, arrest for the whole of his demand, although part had been tendered and refused.

"If A. be indebted to B. in divers distinct sums of money, he may make a tender of any one of the sums (y)." Perhaps in such case the debtor ought to declare upon what account the tender is made (z). It seems that when a quarter's rent is tendered and refused, and another quarter accrues and is tendered, such second tender is sufficient, without tendering the whole rent then due (a).

A tender of more money than is due is good for what is due; for, omne majus continet in se minus (b). Thus, proof of a tender of 20l. 9s. 6d., in bank notes and silver, is sufficient to support a plea of tender of 201. (c) And where the defendant, who owed the plaintiff 1087. for principal and interest on two promissory notes, in consequence of an application from the plaintiff's attorney for the amount, sent a person to the attorney, who told him he came to settle the amount due on the notes, and desired to be informed what was due, and laid down 150 sovereigns on a desk, out of which he directed the attorney to take the principal and interest, this was held a good tender of the 1087. (d). But a tender by a debtor of a larger sum than the amount due, by a bank note, &c., for such larger sum, and out of which he requires change, is not a good tender of the smaller sum; for the creditor may be physically unable to take what is due, and return the dif ference (e). But if in such case the creditor do not object to the tender on that account, but merely demand a larger sum, the tender appears to be good (f).

(y) Bro. Tend. pl. 39; Bac. Ab. Tender, (B). Qu.

(z) Latch's R. 70.

(a) Bassett v. Prior of St. John of Jerusalem in England, M. 2 H. 6, fo. 4, pl. 1; per Martin, J., Fitz. Ab. 1 R. 3, Verdict, pl. 13; 20 Vin. Ab. 182, pl. 2.

(b) Wade's case, 5 Rep. 115; Astley v. Reynolds, 2 Stra. 916; Douglas v. Patrick, 3 T. R. 683; Bevans v. Rees, 5 M. & W. 306; 7 Dowl. 510.

(c) Dean v. James, 4 B. & Ad. 546 ; 1 Nev. & Man. 393.

(d) Bevans v. Rees, 5 M. & W. 306; 7 Dowl. 510.

(e) Betterbee v. Davis, 3 Camp. 70; Robinson v. Cook, 6 Taunt. 336; see Dean v. James, 4 B. & Ad. 518, per Taunton, J.; Blow v. Russell, 1 C. & P. 365.

(f) Black v. Smith, Peake's R. 88, 89: Saunders v. Graham, Gow's R.

121.

Where a party has separate demands for unequal sums, against several persons, an offer of one sum for the debts of all, not distinguishing the claims against each, is not a valid tender; and will not support a plea by one of the debtors that his debt was tendered (g).

If the condition of a bond be that the obligor shall, at a day and place certain, "pay 20l. or deliver ten kine, at the then choice of the obligee," a tender must, it is said, be made both of the money and the kine (h).

5. When made. A tender cannot be effectually made after the day fixed for payment; and therefore a plea by the acceptor of a bill, that after the bill became due he tendered the amount due, is bad (i). It cannot be made after the actual commencement of an action for the recovery of the debt, that is, after the issuing of the writ (j).

But a tender is good if made before the writ was issued; although before the tender the creditor had employed an attorney to sue the debtor, and the attorney had written a letter to the debtor demanding payment, and had applied for the writ (k). And a tender made before the actual suing out of the process, cannot be defeated by relation back to the teste of the writ, but the day it actually issued must be regarded (1). And it is now settled that a tender cannot be defeated by the creditor issuing a writ at

a subsequent hour of the same day (m).

6. Of the Mode of making a Tender.-The money must be actually produced, or the debtor being prepared and offering to produce it, the production must be expressly dispensed with by the creditor, to render a tender complete and valid. The mere refusal to take money is not a sufficient waiver of the necessity of showing and actually offering it to the creditor; for though he might refuse the money at first, yet the production of it might induce him to receive it. To supersede the production of an actual offer of the money the creditor must expressly say, on be

(g) Strong v. Harvey, 3 Bing. 304; 12 Moore, 72, S. C.

(h) Fordley's case, 1 Leon. 68.

(i) Poole v. Tumbridge, 2 M. & W. 223; Hume v. Peploe, 8 East, 168.

(j) Bro. Tend. pl. 9; Bac. Abr. Tender, (D). The writ of summons is the commencement of all personal ac

tions; 1 & 2 Vic. c. 110, s. 2.

(k) Briggs v. Calverly, & T. R. 629; Moffat v. Parsons, 5 Taunt. 307.

(1) Smith v. Key, Stra. 638; Wynne v. Wynne, 1 Wils. 39; Bac. Abr. Tender, (D).

(m) Kirton v. Braithwaite, 1 M. & W. 310.

ing told that the debtor had the money ready, that he need not produce it, or use equivalent expressions.

The defendant said to the plaintiff, "I have eight guineas in my pocket, which I have brought for the purpose of satisfying 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 (n).

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 (o)." 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 (p).

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 (q).

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 51., 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 81. Lord Kenyon held that the tender was not sufficient (r).

The defendant left with his clerk 107. for the plaintiff. The plaintiff called and demanded 167.

The clerk told the plaintiff

that "it would not do if a man said I have got the money, but must go a mile to fetch it."

(9) Leatherdale v. Sweepstone, 3 C. & P. 342.

(r) Dickenson v. Shee, 4 Esp. 68; see Bac. Ab. Tender, (B 1).

that the defendant was from home, and had left 107. with him to give the plaintiff when he called. The plaintiff said he would not receive the 107., nor any thing less than his whole demand. The clerk did not offer the 102.; and the court, on that ground, held that there was no legal tender (s).

put his

The defendant ordered A. to pay the plaintiff 77. 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. hand in 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 (t).

A. 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 (u).

A tender to be good must not be clogged by any condition (x). The debtor should tender the amount he considers to be due, leaving it open to the plaintiff to recover more by action should he be entitled to do so. Therefore if a debtor, on tendering a sum of money, insist upon having a stamped receipt for the money as a condition for his paying it, the tender is invalid; the proper course is in such case to pay the money and then demand

(s) Thomas v. Evans, 10 East, 101. (t) Kraus v. Arnold, 7 Moore, 59. (u) Jones v. Cliff, 1 C. & M. 540. (x) Evans v. Judkins, 4 Camp. 156; Strong v. Harvey, 3 Bing. 304; 11 Moore, 72; Mitchell v. King, 6 C. & P. 237. Mr. Starkie, in the 2d vol. of his valuable Treatise on Evidence (2d 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. See also Jennings v. Major, 8 C. & P. 61; and per Maule, B. in Bevans v. Rees, 5 M. & W. 309, as to the description of condition which avoids a tender.