1831.

POLGLASE

v.

OLIVER.

The opinion of the learned Judge being in favour of this tender, the defendant had a verdict.

Barstow now moved for a new trial. In the case of Wright v. Reed (a), Buller J. stated it to have been considered by the court, that if Bank of England notes are offered in payment, and no objection is made on that account, the tender is to be considered good, "and very properly so, for bank notes pass in the world as cash.” (b) Lord Ellenborough in Brown v. Seal (c), ruled the same But the distinction between the general currency way. of Bank of England notes on which Mr. J. Buller's judgment proceeds, and the limited circulation of country bankers' notes is obvious. In Lockyer v. Jones (a), a Liverpool bank bill of exchange for 10l. was offered to a plaintiff, who refused to accept it, insisting on being paid a larger sum, and Lord Kenyon held him precluded from objecting to the legality of the tender, by his conduct at the time, in merely alleging that it was not sufficient to cover his demand. He assigned as a reason, that if the plaintiff had objected to it on account of its informality, the defendant might have tendered it in money. However, in a later case of Mills v. Safford E. T. 1808, the Court of Exchequer held a tender of a Bristol bank bill bad, though not objected to as such at the time. [Bayley B. That case was overruled in Tiley v. Courtier (b). There a tender was made in bank post bills, Bank of England notes, and a note of the Bristol bank. The plaintiff asked for a larger sum, he said, "the paper might be good for any thing he knew, he did not object to that," but added, "that

(a) 3 T. R. 554. A. D. 1790.

(6) Tender must have been previously made in money coined at the mint, or foreign coin made current by proclamation. Bac, Abr. tit. Tender, B.2. (b) 4 Esp. 267. 1803.

(a) Peake C. N. P. 239, n. 1796.

(b) K. B. Hil. 1817.

he would have his whole demand." The question as to the validity of the tender was argued, and the court of K. B. held it good. That is probably the case alluded to by Mr. Serjt. Peake (a), as supporting the decision in Lockyer v. Jones, and overruling Mills v. Safford.]—

Both parties stand on their legal rights; the plaintiff claiming a larger sum for another lot of soap sold, while the defendant tenders less, and not in current coin. Then why should it be implied, that, because the plaintiff objected to the tender on one ground, he waived a legal objection to it on another, and thereby admitted bankers' notes to be a good tender? Such waiver, to be good, should have been express.

LORD LYNDHURST C. B. I am of opinion that the tender was sufficient. The plaintiff's objection to it was not to the mode, but turned on its insufficiency in amount. The words of the plaintiff in Tiley v. Courtier, 66 the paper may be good for aught I know," assimilates that case to the present. In that case the decision of Lord Kenyon, in Lockyer v. Jones, was upheld, and that of the Court in Mills v. Safford overruled. I fully concur in Lord Kenyon's opinion. Had the tender been objected to at the time, on account of being made in notes, the defendant might have at once changed them for current coin, which might then have been tendered. It was asked, if a tender in gold bars would be sufficient? That would be a tender of merchandize, and not of a matter ordinarily current as money.

BAYLEY B. In order to constitute a legal tender, it should be made in the coin of the realm, which should be produced; (b) but the party, to whom the tender is made,

(c) Peake's C. N. P. 240. n.

(b) Tender if of more than 40s. must be in gold. 56 G. 3. c. 68. s. 11, 12. See s. 4.; and as to aliens, stat. 8 Hen. 6. c. 24. s. 1.

1831.

POLGLASE

v.

Oliver.

1831.

POLGLASE

บ.

OLIVER.

may make an insufficient tender good by relying on a different objection. Thus, if he says he will not take the sum offered, and alleges that more is due to him, that dispenses with the production of the money (a) and cures its being offered in paper (b). If the plaintiff rests his objection to the tender on its being too small in amount, he misleads the defendant, who might have obviated the other objection to its quality. I consider Lockyer v. Jones to be good law. It was there decided, that if objection is taken to a tender of local notes, not on account of their character as such, but to the quantum, it cannot afterwards be objected that the mode of payment was improper : and there is good reason for that, for had the plaintiff said, "I will not have country bank notes," it would give the defendant an opportunity, either to change them and make another tender, or to produce legal money from his pocket. The defendant is deluded by another objection being insisted on, viz. his not offering enough. Nor does the argument, that the waiver in Lockyer v. Jones, and Tiley v. Courtier, was express, whereas here it was implied, make any difference in my judgment.

GARROW B.-I am of opinion that this tender became good by the plaintiffs not having objected at the time to the form in which it was made. I think that the great convenience to the mercantile world of a tender in this shape, renders it advisable to uphold Lord Kenyon's decision.

(a) Black v. Smith, Peake 88. The production of the money seems the proper course, unless the plaintiff expressly say, that if produced he would not accept it, for otherwise if produced to him he might be induced to accept it. Per Lord Kenyon, Dickenson v. Shee, 4 Esp. C. N. P. 67. and see Thomas v. Evans, 10 East, 101.

(b) e. g. in a banker's check. Wilby v. Warren, Tidd, 187. 9th Edit.

Buller J. Hil. 1788.

BOLLAND B.-This appears to me to be a good tender, on the grounds stated by the rest of the Court.

Rule refused.

1831.

POLGLASE

v.

OLIVER.

WOOD against BENSON.

ASSUMPSIT.-First count on the following guaran- A written

tee:

"I the undersigned do engage to pay the directors of the Manchester gas works, or their collector, for all the gas which may be consumed in the Minor Theatre, and by the lamps outside the theatre, during the time it is occupied by my brother-in-law, Mr. Neville, and I do also engage to pay for all arrears which may be due. Witness my hand this 10th August 1830.” (Signed by defendant.)

now

There was another count for goods and gas sold and delivered. At the trial before J. Parke J. at the Sum

was

For

mer assizes for Lancashire, it appeared that 137. 15s. 6d.
was in arrear for gas supplied before the guarantee
given, and 157. 4s. 6d. for supplies furnished since.
the defendant, it was objected, under the statute of
frauds, that no consideration for the promise to pay the
by-gone arrears appeared on the face of the guarantee,
from which it was deduced, that the agreement being
void as to part, was bad for the whole; and that the
after-occurring demand could not be recovered.

guarantee by which defen

dant engaged to pay for all the gas which might be

consumed

at a theatre during the

time it was

occupied by A., and also to pay for all arrears which might be then due, is void as to the ar

rears for want

of sufficient

consideration apparent on

the face of ment; but the amount due

the instru

for gas sup

plied subsequently to the

date of the guarantee, may be recovered under

A verdict for 291. was directed, with leave to the de- an indebitafendant to move to enter a nonsuit.

A rule having been accordingly obtained by Joshua Evans,

Wightman shewed cause.-A sufficient consideration

tus count for goods sold.

1831.

WOOD

v.

BENSON.

appears on the face of this instrument; for the future supply of gas is the consideration for both branches of the promise, viz. to pay the sum already due for it, as well as for the future supplies. If that is apparent on the whole of the instrument, it does not signify in what part of it it occurs. In Russell v. Moseley, (a) the guarantee was of "the present account of H. M. due to S. of 1127. 4s. 4d., and what she may contract from this date to the 30th September next." That guarantee is so nearly similar to the present, that unless wrongly decided, the judgment in that case must prevail. Here the consideration for incurring a future debt was the payment of a prior one.

At all events, the plaintiff is entitled to recover 15l. 4s. 6d. for the gas furnished after the guarantee, on the indebitatus count for goods sold and delivered. These items were at the trial kept separate in proof. The promise to pay for future supplies of gas was not a collateral promise to pay for goods furnished to another, on which the plaintiff was bound to declare specially, (b) but an original order on a contract by defendant for a future supply of gas, and a promise to pay for it. Had the written engagement concluded with the undertaking to pay for the future supply, no special count would have been necessary. Then is that contract void, because the written evidence of it also contains a promise to pay the by-gone debt of another?-[Bayley B. There may be two agreements under one bargain.]-The promise to pay the arrears was the only one which required a special count, and if no sufficient consideration appears on the face of the instrument, the plaintiff cannot recover on that count. But that will not affect the count for goods sold. On the last point, then, this case may

(a) 6 B. M. 521. 3 B. & B. 211.

(b) See 1 Saund. 211. a. Buckmyr v. Darnell, Ld. Ray. 1085.