By stat. 56 Geo. III. c. 68, s. 11, gold coin, of the weight and fineness prescribed by the Mint indenture, is declared to be the only legal tender for payments of any sum exceeding forty shillings, and that no tender of payment in silver coin beyond that sum is legal.

By the last act giving to the Bank of England privileges, for a limited period, under conditions, viz. 3 & 4 Will. IV. c. 98, s. 6, a tender of Bank of England notes payable to bearer on demand is made a legal tender to the amount expressed in such notes, and is to 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 pay on demand their notes in legal coin. Provided, that no such notes shall be a legal tender by the Bank of England, or any branch bank thereof; but the Bank are not to be required to pay at any branch bank any notes not made specially payable at such branch bank; but the Bank of England shall satisfy at the bank in London all notes of the bank or of any branch thereof.

A tender of country bank notes is a good tender, if the creditor only objects to the quantum and not to the quality of the tender (1).

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 (m), 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 (n), the party pleading a tender must show that he was "always ready," from the time when the cause of action accrued (88). Hence to an action of indebitatus assumpsit (o), 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

(1) Polglass v. Oliver, 2 Cr. & J. 15, recognizing Lockyer v. Jones, Peake's N. P. C. 239, n. 3d edit., and Black v. Smith, ib. 88.

(m) Briggs v. Calverly, 8 T. R. 629.

Personal actions must now be commenced
by writ of summons, 1 & 2 Vic. c. 110, s. 2.
(n) Giles v. Hartis, Ld. Raym. 254.
(0) Sweatland v. Squire, Salk. 623.

(88) 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.

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 (p), 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 (q), it was expressly decided, that an averment of tout temps prist was necessary in the plea of tender, and that it was one of those landmarks 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 curia (r), 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 (s) 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.

Of the Replication. To a plea of tender the plaintiff may reply a subsequent demand and refusal.

The usual form of this replication is, that," after the making of the tender mentioned in the plea, and before the commencement of the action, the plaintiff demanded the said sum, (the sum tendered,) but that the defendant refused to pay the same," &c. Issue being joined on the fact of this demand, it will be incumbent on the plaintiff to prove that he demanded the precise sum before tendered. Proof of a demand of a larger (t) sum than that which was originally tendered, will not support the issue. The demand ought to be made by some person authorized to give the debtor a discharge. Hence, in a case where the demand had been made by the clerk to the plaintiff's attorney (u), who had never seen the defendant before going upon this errand, Lord Ellenborough held the demand insufficient; admitting, however, that the demand by the attorney himself might have done. If to the plea the plaintiff reply a latitat (v) (89), and that the tender was not made before the suing

(p) Hume v. Peploe, 8 East, 168.

(9) Ld. Raym. 254, and vid. Wood v. Ridge, Fort. 376.

413.

French v. Watson, C. B. 2 Wils. 74.
Giles v. Hart, Salk. 622, and Carth.

(t) Spybey v. Hide, 1 Campb. 181; Ld. Ellenborough, C. J., Rivers v. Griffiths, 5 B. & A. 630, S. P.

(u) Coles v. Bell, Sittings after M. T. 49 Geo. III. 1 Campb. 478, n.

(v) Wood v. Newton, B. R. 1 Wils. 141.

(89) Denison, J., doubted whether the replication of a latitat was

out the latitat, the defendant may rejoin, that plaintiff had not any cause of action at the time of suing it out; because the plaintiff by the replication makes the latitat the commencement of the suit; therefore it may be considered in the nature of an original writ, and defendant ought to have the same advantage of it as the plaintiff. The same observation which was made at the conclusion of the cases relating to the plea of set-off applies here, viz. that if by the plea of tender being found for the defendant, the balance proved on the non assumpsit is under 40s. ; yet, if that, added to the sum tendered, exceed 40s. the jurisdiction of the superior court will not be affected (w), and the defendant will not be permitted to enter a suggestion on the roll in order to obtain his costs (x).

V. Damages.-Judgment.

WHERE an action is brought for not delivering goods upon a given day, the true measure of damages is the difference between the

(w) Heaward v. Hopkins, Doug. 448.

(x) Middx. Court of Conscience, stat. 23 Geo. II. c. 33, s. 19 (90).

good, because it was not material when the process issued. This was upon a supposition that the latitat was only process. 1 Wils. 148. Indeed when the issuing out of a latitat is not replied to the statute of limitations, or to avoid a tender, or given in evidence to support a penal action, it is considered but as process, and not as the commencement of the suit. Foster v. Bonner, Cowp. 454. It is in the election of the plaintiff to consider the memorandum, or the actual suing out of the writ, as the commencement of the suit; this is the rule, subject to the exception that in penal actions and in cases on the statute of limitations the defendant may always resort to the real time. Pugh v. Martin, 3 Doug. 347. But now by R. G. H. T. 4 Will. IV. No. 1, every pleading, as well as the declaration, shall be entitled of the day of the month and year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll, under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the court or a judge. See also 1 & 2 Vict. c. 110, s. 2.

(90) But see the words of the statute, by which it is enacted, " that if any action of debt or assumpsit shall be commenced in any of the king's courts at Westminster, and the defendant shall live or reside in Middlesex, and the jury upon the trial of such cause shall find the damages for the plaintiff under 40s., unless the judge shall in open court certify on the back of the record, that, 1, the freehold or title to the plaintiff's land, or 2, an act of bankruptcy principally came in question, &c., the defendant shall recover double costs." See also Clark v. Askew, 8 East, 28; Nightingale v. Barnard, 4 Bingh. 169.

contract price (y), and that which goods of a similar quality and description bore on or about the day, when the goods ought to have been delivered. Contract for a quantity of oil at a certain price, to be delivered at a future day; in an action for not accepting and paying for the oil, the proper measure of damages (2) is the difference between the price contracted for and the market price at the time when the contract ought to have been completed. Where A. contracted for the purchase of wheat "to be delivered at B. as soon as vessels could be obtained for the carriage thereof," and subsequently (the market having fallen) A. gave the seller notice that he would not accept it, if it were delivered, the wheat being then on its transit to B., it was holden (a), in an action against A. for not accepting the wheat, that the proper measure of damages was the difference between the contract price and the market price on the day when the wheat was tendered to A. for acceptance at B. and refused; and not on the day when the notice was received by the seller. But in an action for not replacing stock (b), the highest value as it stood either when it ought to have been replaced, or at the time of trial, is to be taken, but not any higher price (c) to which the stock may have risen at any intermediate

time.

Where an agreement contains several stipulations, some of them touching matters of great importance to the parties, and others matters of little or no importance, a stipulation for liquidated damages, generally, upon any violation of the agreement, shall not be carried (d) into effect; but otherwise, if the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.

Where the contract was for about 300 quarters (more or less) of foreign rye, shipped on board a particular vessel coming from Hamburgh; the vessel brought 345 quarters, and the sellers refused to deliver any part, unless the purchasers would accept the whole. It was holden (e), that they were not bound to accept the whole; Ld. Tenterden, C. J., and Littledale, J., being of opinion, that by the words, "about" and more or less," the parties could not have contemplated so large an excess as 45 over 300 quarters; and Parke, J., and Patteson, J., "It lay on the sellers to show that such an excess was contemplated; and if from the obscurity of the contract they were unable to do so, their defence failed." In this case evidence was received, that the words "more or less," in a contract for grain, according to the custom of merchants, does not require the purchaser to accept so large an excess. The judge,

(y) Gainsford v. Carroll, 2 B. & C. 624. (z) Boorman v. Nash, 9 B. & C. 145. (a) Phillpotts v. Evans, 5 M. & W. 475, recognizing Leigh v. Paterson, 2 Moore, 588.

(b) Shepherd v. Johnson, 2 East, 211. (c) M'Arthur v. Ld. Seaforth, 2 Taunt.

257.

(d) Kemble v. Farren, 6 Bingh. 141. (e) Cross v. Eglin, 2 B. & Ad. 106.

however, gave leave to move; the court did not decide on its admissibility; Littledale, J., expressed a doubt. N. He said also, When land is described in conveyances, it is often mentioned as containing so many acres and roods, "be the same more or less," but it is always understood that the excess bears a very small proportion to the quantity named, a much smaller proportion than that of 45 to 300 quarters.

Judgment.-Although it is a rule (ƒ), that the court will look to the whole record, and give judgment according to the truth there disclosed, however irregular the mode of pleading may be; yet the court cannot pick out of various parts (g) of the record a different cause of action from that for which the plaintiff proceeds.

(f) Le Bret v. Papillon, 4 East, 502; Charnley v. Winstanley, 5 East, 266.

(g) Head v. Baldrey, 6 A. & E. 469; 2 Nev. & P. 217, S. C.