1831. shortly this; when the sum in dispute is under 20., and Exch. of Pleas, the party would be bound to pay the costs, the Court think it mercy to the parties not to grant a new trial. The rest of the Court concurring, the rule was Refused. YOUNG v. HARRIS, POLGLASS v. OLIVER. INDEBITATUS assumpsit. Plea-the general issue A tender in as to part; and, as to the residue, a tender. The question, at the trial, before Taunton, J., at the Bristol Summer Assizes was, whether the tender was legal. The tender was made in country bank notes; the plaintiff made no objection upon that account, but claimed a larger sum, and said, "I will not take it, I claim for the last cargo of soap." The learned Judge thought the tender good, and the defendant had a verdict. Barston now moved for a new trial. This tender was not good in point of law. According to the earlier cases, the money tendered should be current coin of the realm, or foreign money legally made current by proclamation. Bac. Abr. Tender, (B. 2). It must be admitted, however, that bank of England notes have been holden to be a good tender if not objected to at the time. Brown v. Saul (a). But in Grigby v. Oakes (b), Chambre, J., observed, that "it has been thought that the Courts went a great way in holding a tender in bank notes to be a good tender if not objected to at the time;" and there is a palpable distinction between country notes and notes of the Bank of England. Bank of England notes pass current by universal consent through(a) 4 Esp. 267; S. P. Wright v. Read, 3 T. R. 554. (b) 3 B. & P. 529. country bank notes is a good tender if the creditor only objects to the quantum and not to the qua~ lity of the ten der. 1831. POLGLASS Exch, of Pleas, out England; not so country notes. Here the parties each stood upon his strict legal rights, and even, though the objection to the quality of the tender may be waived, there must be an express waiver; and here the waiver is at best only implied. Suppose a tender were made in gold bars, v. Oliver. would that be sufficient? [Bayley, B.-No. The party would offer what does not ordinarily pass as money. Lord Lyndhurst, C. B.-Gold bars are merchandize.] The case of Lockyer v. Jones (a) also decides that a tender in country notes, if the amount only is objected to, is good; but that case was overruled in Mills v. Safford (b), where this Court held that a tender of a Bristol bank bill was not a good tender, though no objection was made to it on that account. [Bayley, B.-That case was overruled in Tiley v. Courtier (c), King's Bench, Hilary Term, 1817, which is probably the case alluded to by Mr. Peake, who says "but in a subsequent case in the King's Bench, this latter case (d) was again overruled, and the decision of Lord Kenyon in Lochyer v. Jones established as law]. Lord LYNDHURST, C. B.-I am of opinion that this ten (a) Peake, N. P. 239, n. On a plea of tender of 10. and issue thereon, it appeared in evidence that the tender was made in a Liverpool bank bill, and that the plaintiff refused to take it, on the ground that he had a demand for more: and Lord Kenyon said, as the objection was to the quantum and not to the mode of payment, he thought the tender good, and the defendant had a verdict. Lockyer v. Jones, 29th February, 1796. (b) Peake, N. P. 240, n. (c) A tender of 1027. odd was made in bank post bills, bank notes, and a Bristol bank note: the plaintiff demanded more; he was asked if he objected to the paper, he said that might be good for ought he knew; he did not object to that, but he would not take less than his whole demand: the point was saved, whether this was a good tender, and the Court thought clearly that it was. Postea to the defendant. Tiley v. Courtier, Hilary, 1817. (d) Mills v. Safford, Peake, N. P. 240, n. 1831. POLGLASS V. der was sufficient. The plaintiff did not object to the Exch. of Pleas, tender because it was made in bank notes, but relied on a different objection. This falls precisely within the principle laid down by Lord Kenyon in the case of Lockyer v. Jones, in which I fully concur; and which principle is supported by the case to which my brother Bayley has referred, and by which the case in this Court was overruled. BAYLEY, B.-To make a tender good, it should be made in the coin of the realm, and the money ought to be produced; but the party to whom the tender is made, may make good what would otherwise be insufficient, by relying on a different objection. If he claim a larger amount, and give that as a reason for not accepting the money, he cannot afterwards object that the money was not produced (a), nor can he object that it was offered in paper. If he object to accept the sum tendered because it is in paper, which he is not bound to receive, he gives the party tendering an opportunity to make his tender in coin; but if he puts his refusal upon a different ground, he waives the objection as to the quality of the tender. In Lockyer v. Jones, and the case which I have mentioned, the tender was made in local notes; but, in the former case, Lord Kenyon decided, that if, when a tender is made in local notes, an objection is made not to the character of the money but to the quantum, it cannot afterwards be objected that the mode of payment was improper. It seems to me that there is reason and good faith in this decision; for, if you objected expressly on the ground of the quality of the tender, it would have given the party the opportunity of getting other money and making a good and valid tender; but, by not doing so, and claiming a larger sum, you delude him. I think, therefore, that Lockyer v. Jones, and the case to which I have referred, are good law; and OLIVER. 1831. POLGLASS Exch. of Pleas, the only distinction suggested between those cases and the present, viz. that in those cases there was an express waiver, here, only an implied one, in my opinion will make no difference. I therefore think that the tender in this case was sufficient. v. OLIVER. GARROW, B.-It is much more convenient to the mercantile world, that a tender in paper, if not objected to at the time, should be considered valid. BOLLAND, B.-I am of opinion that this was a good tender. The objection made at the time was of a different character; and the party is now precluded from saying that it was not a valid tender. (a) The demand of a larger sum dispenses with the formality of the tender, even though a receipt be demanded when the tender is made; Cole v. Blake, Peake, N. P. 179; or the tender be made in a banker's cheque, per Buller, J., Rule refused (a). Welby v. Warren, Tidd, 183; or a bank note be tendered in payment of a fractional sum. Saunders v. Graham, 1 Gow, 111; Cadman v. Lubbock, 5 D. & R. 289. See also Thomas v. Evans, 10 East, 101. The Court refused a rule for a new trial, on payment of costs, for the purpose of ena bling a defend ant in trespass q. c. f., to amend his plea of a right of way, which described the line of way incorrectly. EDWARDS v. BROXON and Others. TRESPASS quare clausum fregit. Pleas—general issue and right of way. At the trial, before Patteson, J., at the last Summer assizes for the county of Salop, the defendant proved a right of way, the line of which did not correspond, as to one of the closes through which it passed, with the line of way described in the plea. The defendant had passed over the closes mentioned in the plea. The learned Judge held, that the defendant was bound to prove the line of MICHAELMAS TERM, 2 WILL. IV. 1831. way, as it was described in the plea; and the Jury, under Erch. of Pleas, his Lordship's direction, found a verdict for the plaintiff with nominal damages. Jervis now moved for a new trial upon payment of costs, in order that the defendants might have an opportunity of amending the pleadings; and he urged that it was a hard case on the defendants to be defeated on account of an accidental slip in the description of the way, when they had proved a right of way; and he said, that much expense would be saved by this course. But, per Curiam, if you had pleaded the right of way correctly, the plaintiff might have newly assigned in aliis locis, for you used the road as pleaded. Do you know any instance of such an application having been made, where the verdict was clearly right and the pleadings were wrong? We recollect no such instance. Rule refused. EDWARDS v. BROXON. BALME and Others, Assignees of BANKHART and Benson, TROVER by the plaintiffs, as assignees of the bank- This Court having ordered a second trial of this cause (a), it came on to be tried before Bayley, J., at the York Sum rupt, before commission, of bankruptcy, without notice of the act of bankruptcy, is not liable in trover; but a Sheriff's bailiff, who has taken an indemnity from the execution creditor, is so liable. (a) See 2 Y. & J. 101. |