pay the debt when he was able, Lord Kenyon ruled that the plaintiff was bound to show that the defendant was then of sufficient ability to pay, adding, that it had been so ruled before by Eyre, Č.J. Davies v. Smith, 4 Esp. 35; and see BesFord v. Saunders, 2 H. Bl. 116. So where the promise was, "I cannot pay the debt at present, but I will pay it as soon as I can," the Court of King's Bench held that it was necessary for the plaintiff to show the defendant's ability to pay. Tanner v. Smurt, 6 B. and C. 603. Ayton v. Bolt, 4 Bingh. 105. A'Court v. Cross, 3 Bing. 329. But where the defendant said, that if certain other persons paid he should do the same, Lord Ellenborough held that the plaintiff was entitled to recover without proof that the other persons had paid. Loweth v. Fothergill, 4 Campb. 185. So where the defendant promised to pay the debt by instalments if time were given, Lord Ellenborough was of opinion that this was sufficient, and the plaintiff recovered without proof of time being given. Thompson v. Osborne, 2 Stark. 98. See also Campbell v. Sewell, 1 Chitty, 609. Fleming v. Huyne, 1 Stark. 370.

Mutual accounts.] Such accounts as concern the trade of merchandise between merchant and merchant are excepted from the operation of the statute. Where there have been mutual current and unsettled accounts between the parties, and any of the items are within six years, such items are evidence (under the replication that the defendant did promise, &c.) as an admission of there being an open account, so as to take the case out of the statute, like any other acknowledgment. Catling v. Skoulding, 6 T. R. 189, 2 Saund. 227, a (n). But where all the items are on one side, the statute is a bar to all demands above six years standing. Cotes v. Harris, B.N.P. 149. Where there are mutual accounts, but no item of account at all within six years, the plaintiff may reply specially to the plea of the statute, that the accounts are mer.. chants' accounts. 2 Saund. 127, c (n). But it has been held in equity that merchants' accounts are within the statute, if they have ceased six years. Barber v. Barber, 18 Ves. 286; and see Jones v. Pengree, 6 Ves. 580, Martin v. Heathcote, 2 Eden, 169. The clause in the statute as to merchants' accounts is not confined to persons actually merchants. Catling ▼. Skoulding, 6 T. R. 191.

Tender.

A plea of tender operates like the payment of money into court as an admission of the contract stated in the declaration. Cor v. Brain, 3 Taunt. 95. Thus in an action on a guarantee it supersedes the necessity of proving it to be in writing. Middleton v. Brewer, Peake, 15.

By whom a tender must be made.] The tender need not be made by the debtor himself, it is sufficient if made by his agent; and a tender by an agent, at his own risk, of more than the money given by his principal, is good. Read v. Goldring, 2 M. and S. 86.

To whom a tender must be made.] A tender to a person authorised by the creditor to receive money for him, is sufficient. Goodland v. Bleweth, 1 Campb. 477. And where a clerk who was in the ordinary habit of receiving money for his master, was directed by his master not to receive the sum in question, for that he had put it into the hands of his attorney, and the clerk, on tender made, refused to receive the money, assigning the reason, it was held to be a good tender to the principal. Moffat v. Parsons, 5 Taunt. 307. A tender to the attorney on the record is a good tender to the principal. Crozer v. Pilling, 4 B. and C. ante, p. 247. And a tender to a person in the office of the plaintiff's attorney, who is referred to on the subject by a clerk in the office, and who refuses the tender as being of an insufficient sum, is a good tender without showing who that person was. Wilmott v. Smith, 1 M. and M. 238, 3 C. and P. 453, S. C.; and see Barrett v. Dure, Id. 200, ante, p. 248. Where the money was brought to the house of the plaintiff, and delivered to his servant, who retired, and appeared to go to the master, it was held to be evidence to go to the jury, from which they might infer that a tender was made. Anon. 1 Esp. 349. A tender to one of several partners is sufficient. Douglas v. Patrick, 3 T. R. 683. But a tender of a debt due to a bankrupt's estate to a collector employed by the solicitor under the commission is, as it seems, bad. Blow v. Russel, 1 C. and P. 365.

Tender, to what amount.] If a man tenders more than he ought to pay, it is good, for the other ought to accept so much as is due to him. Wade's case, 5 Rep. 115, c. Astley v. Reynolds, 2 Str. 916. But it seems that such a tender is only good where it is made in monies numbered, so that the creditor may take what is due to him. Therefore a tender of a 51. note, from which the creditor is desired to take 3l. 10s., is not good. Betterbee v. Davis, 3 Campb. 70. Robinson v. Cook, 6 Taunt. 336. Watkins v. Robb, 2 Esp. 710. Brady v. Jones, 2 D. and R. 305. So where a party has several demands for unequal sums against several persons, a tender of one sum for the debts of all, is not a good tender of one of the debts. Strong v. Harvey, 3 Bingh. 304. But where a greater sum is tendered than the sum pleaded, and the creditor refuses to receive it on the ground that the amount is not sufficient, and not on account of the form of the tender, the tender is, it seems, good. Black v. Smith, Peake, 88. Saunders v. Graham,

Cow, 121. A tender to one of several partners, including a debt due to the partnership, and also a debt due to that one partner individually, is a good tender of the partnership debt, unless objected to on account of the form of the tender. Douglas v. Patrick, 3 T. R., 683, and see Black v. Smith, Peake, 88.

Tender, in what kind of money.] By stat. 56 Geo. III. c. 68, S. 11, the gold coin of the realm is declared to be the only legal tender for payments (except as therein after provided) within the United Kingdom of Great Britain and Ireland. And by s. 12, no tender of payment of money made in the silver coin of the realm of any sum exceeding the sum of 40s. at one time shall be a legal tender. Bank notes are not a legal tender. Grigby v. Oates, 2 B. and P. 526. But they have been held to be a good tender unless objected to at the time on that account. Per Buller J., Wright v. Reed, 3 T. R. 524, Brown v. Saul, 4 Esp. 267. So a tender of a country bank bill of exchange has been held good unless objected to. Lockyer v. Jones Peake, 180 (n); but see Mills v. Safford, Ibid.

contra.

to

Tender, whether the money must be actually produced.] The actual production of the money due in monies numbered is not necessary, if the debtor having it ready to produce, and offering pay it, the creditor dispense with the production of it at the time, or do any thing which is equivalent to that. Per Lord Ellenborough, Thomas v. Evans, 10 East, 101. Thus where the defendant left 10l. with his clerk, for the plaintiff, of which the clerk informed the plaintiff when he called and demanded a larger sum, and the plaintiff said he would not receive the 10l., nor any thing less than his whole demand, but the clerk did not offer the 10l., this was held to be no tender. Ibid. And see Dickenson v. Shee, 4 Esp. 68. But where the defendant went to the plaintiff and told him that he had eight guineas and a half in his pocket which he had brought for the purpose of satisfying his demand, but the plaintiff told him he need not give himself the trouble of offering it, for that he would not take it, the tender was held to be good. Douglas v. Patrick, 3 T. R. 684, and see Ryder v. Townsend, 7 D. and R. 119. But it would have been otherwise, if, before the defendant could take the money out of his pocket, the plaintiff had left the room. Leatherdale v. Sweepstone, 3 C. and P. 342. The agent of the defendant met the plaintiff in the street and told him that he was come to settle the business between the defendant and him, and that he was desired by the defendant to offer him 4.; the plaintiff said he would not take it; the witness then said that he would give him the other 10s. out of his own pocket, and run the risk of being repaid. He then pulled out

his pocket-book, and told the plaintiff that if he would go into a neighbouring public-house he would pay him, but the plaintiff said he would not take it; this tender was held to be good. Read v. Goldring, 2 M. and S. 86. Where a witness stated that she was present at an interview between the plaintiff and defendant, at which the defendant was willing to give the plaintiff 10l.; and that she (the witness) offered to go up stairs and fetch that sum, but that the plaintiff said she need not trouble herself, for he could not take it, this was held by Best, C. J., to be a good tender (the witness stating that the money was up stairs), though the defendant did not take any notice of the witness's offer at the time. Harding v. Davies, 2 C. and P. 77. But where the defendant ordered A. to pay the plaintiff 77. 12s., and the clerk of the plaintiff's attorney demanded 8l., on which A. said that he was only ordered to pay 71. 12s. which sum was in the hands of B., who was present, and B. put his hand to his pocket as if to pull out his pocket book, when A. desired him not to do so, as the clerk demanded 81. and he was ordered to pay 7l. 12s. only, and B. could not say whether he had the latter sum about him, but swore that he had it in his house, at the door of which he was standing, the tender was held to be insufficient. Kraus v. Arnold, 7 B. Moore, 59, and see Glascott v. Day, 5 Esp. 49.

Evans

Tender, must be unconditional.] In order to support a plea of tender, there must be evidence of an unqualified offer. Therefore, where the defendant tendered a sum of money, and at the same time delivered a counterclaim upon the plaintiff, and the plaintiff did not take up the money or paper, but simply said, "You must go to my attorney," the tender was held insuffi. cient. Brady v. Jones, 2 D. and R. 305. So a tender accompanied with a protest against the party's liability, appears to be insufficient. Simmons v. Wilmott, 3 Esp. 94. So an offer of payment, clogged with a condition that it should be accepted as the balance due, does not amount to a legal tender. v.Judkins, 4 Campb. 156; and see Huxham v. Smith, 2 Campb. 21, Strong v. Harvey, 3 Bingh. 304. So where the tender is accompanied with a demand of a receipt in full; Glascott v. Day, 5 Esp. 48, Higham v. Buddeley, Gow, 213, Ryder v. Townsend, 7 D. and R. 119; but though a party tendering money cannot in general demand a receipt for the money, yet where the creditor did not object to the demand of a receipt, but that the sum was insufficient, the tender was held by Lord Kenyon to be good. Cole v. Blake, Peake, 179. But where the defendant took the money out of his pocket, and said, “If you will give me a stamped receipt, I will pay you the money," and the plaintiff replied that he would not take it, but would serve him with a Marshalsea writ, Abbott, C.J., held this to be no proof of a tender. Laing v. Meader, 1 C. and P.

257. The debtor ought to bring a receipt with him, and require the creditor to sign it, and if the latter refuses, he is liable to a penalty by 43 Geo. III. c. 126, s. 4, 5.

Tender, evidence on replication.] The plaintiff may reply that before tender made, he issued a writ. 1 Saund. 33, b (n). So he may reply a prior or subsequent demand and refusal. Such demand must be proved to be of the precise sum tendered. Rivers v. Griffiths, 5 B. and A. 630. The demand must be by a person authorised to receive the money, and therefore a demand by the clerk of the plaintiff's attorney is insufficient. Coore v. Callaway, 1 Esp. 115. A subsequent demand upon one of two joint debtors is sufficient. Peirse v. Bowles, 1 Stark. 323. A letter written by the plaintiff's attorney, and received by the defendant, demanding the sum tendered, is not, as it seems, sufficient evidence of a subsequent demand; for at the time of the demand, the defendant should have an opportunity of paying the sum demanded. Edwards v. Yutes, R. and M. 360; but see Haywood v. Hague, 4 Esp. 93.

CASE FOR NUISANCE.

In an action on the case for a nuisance affecting real property, the plaintiff must prove his title to the property affected by the nuisance, the nuisance occasioned by the defendant, and the amount of damage.

Plaintiff's title.] It is sufficient for the plaintiff to prove, as alleged in the declaration, that he was possessed of the premises injured by the nuisance. The right to incorporeal hereditaments is frequently proved by presumptive evidence of enjoyment for upwards of twenty years, see ante, p. 16. Where it was alleged that by reason of his possession of a mill, the plaintiff was entitled to the use of a watercourse, it was held that such allegation was not supported by evidence of a parol license or agreement, by which the defendant permitted the exercise of the right in question to the plaintiff, but did not legally grant or annex it to the mill. Fentiman v. Smith, 4 East, 107; Hewlins v. Shippam, 5 B. and C. 221. In an action against a stranger for disturbing the plaintiff in the possession of a pew, it is not necessary for the plaintiff to prove repairs, though it is otherwise where the action is against the ordinary. Kenrick v. Taylor, 1 Wils. 326. If the nuisance be of a permanent nature, and injurious to the reversion, an action may be brought by the reversioner as well as by the tenant in possession, each being entitled to recover his respective loss. Biddlesford v. Onslow, 3 Lev. 209, 1 Saund. 322, b (n). So the reversioner may sue where the injury complained of is an injury to his right, though the nuisance is capable of being easily removed. Shadwell v.

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