of the tender on account of his being entitled only to the joint demand; D. may plead this tender in bar of an action on the joint demand; but it ought to be pleaded as a tender to A., B., and C. A tender of foreign money, made current by royal proclamation, is equivalent to a tender of lawful money of England; but a tender of bank-notes, if objected to at the time (105), is not a good legal tender; nor has stat. 37 Geo. 3. c. 45. (commonly called the Bank Act) made any alteration in the law in this respect (106). A tender of money to an agent authorized to receive payment', is a good tender to the creditor himself. At what Time the Tender may be made.-The tender must be made before the commencement of the suit. The lipe 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, 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 p 5 Rep. 114 b. q Grigby v. Oakes, 2 Bos. and Pul. 526. r Goodland v. Blewitt, 1 Camp. N. P. C. 477. 募 s Briggs v. Calverly, s T. R. 629. (105) "This court has never yet determined that a tender in bank-notes is at all events a good tender; but if they have been offered, and no objection has been made on that account, this court has considered it to be a good tender." Per Buller J. in Wright v. Reed, B. R. H. 30 Geo. 3. 3 T. R. 554. "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." Per Chambre J. in Grigby v. Oakes, 2 Bos. and Pul. 526. (106) By stat. 37 Geo. 3. c. 45. § 9. affidavits to hold to bail, must allege that no offer has been made to pay the sum sworn to in notes of the governor and company of the Bank of England, expressed to be payable on demand, (fractional parts of the sum of twenty shillings only excepted). But by stat. 43 G. 3. c. 18. persons applying to be discharged upon common bail, by reason of any defect in the allegation required by the preceding statute, must make proof by affidavit, that the whole sum, for which they have been holden to bail, was offered to be paid, either wholly in notes of the governor and company of the Bank of England, or partly in such notes, and partly in lawful money of this kingdom. 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', the party pleading a tender must shew that he was "always ready," from the time when the cause of action accrued (107). Hence to an action of indebitatus assumpsit", 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 ready: on demurrer, the plea was hoiden 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, 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, it was expressly decided, that an averment of tout temps prist was necessary in a plea of tender, and that it was one of those land marks 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, 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, 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. At what Time a Tender must be pleaded. It is a general rule, that a tender cannot be pleaded after any kind of t Giles v. Hartis, Ld Raym. 254. z French v. Watson, C. B. 2 Wils. 74. a Giles v. Hart, Salk. 622. and Carth. 413. (107) 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. L imparlance, because the imparlance is contradictory to that part of the defendant's plea in which he alleges, that he was always ready. A tender must therefore be pleaded before imparlance of the same term with the declaration“, unless the declaration be delivered or filed so late that the defendant is not obliged to plead to it that term; and then it may be pleaded of course within the first four days inclusive of the next term, as of the preceding term. Under particular circumstances the court will give the parties, on an early application, leave to plead a tender after an imparlance, as where the writ was returnable in Easter term, and the declaration not delivered until the day before the essoign day of Trinity term, on which day it was sent by the post to Shrewsbury, where the defendant lived, so that the agent could not procure instructions to plead a tender within the first four days of Trinity term. Where the declaration is entitled of the term generally', and the defendant pleads a tender, upon which he would give in evidence a tender made between the first day of the term to which the bill relates, and the day of suing out the writ, he may apply to the court to oblige the plaintiff to entitle his declaration properly (108); but this application must be supported by an affidavit of a tender made on such a day. After a plea of tender, there cannot be a nonsuit". 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 b Giles v. Hart, Salk. 622. and Carth. 413. c Tidd's Prac. 394. d Browne v. Hagan, Barnes 357. Pit- e Bayley v. Houldston, Barues 351. g Southouse v. Allen, T. 8 and 9 G. 2. B. R. MSS. h Per Heath J. in Gutteridgev. Smith, 2 Bl. 377. and so ruled by the same judge in Harding v. Spicer, Surrey Lent Ass. 1808. 1 Camp. N. P. C. 327. Sed quæ. (108) And it seems, that if the defendant omits to do this, he will not be permitted to give the tender in evidence, although he can prove the writ sued out on a day subsequent to the tender. Rolfe v. Nordin, B. R. Middlesex Sittings after M. T. 42 G. 3.—Cʊr.m Le Blanc J. 4 Esp. N. P. C. 72. incumbent on the plaintiff to prove that he demanded the precise sum before tendered. Proof of a demand of a larger sum than that which was originally tendered will not support the issue. The demandought 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, who had never seen the defendant before going upon this errand, Lord Ellenborough held the demand insufficient; admitting, however, that a demand by the attorney himself might have done. If to a plea of tender the plaintiff reply a latitat1(109), and that the tender was not made before the suing 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", and the defendant will not be permitted to enter a suggestion on the roll in order to obtain his costs". i Spybey v. Hide, 1. Camp. N. P. C. I Wood v. Newton, B. R. 1 Wils. 141. 181. Ld. Eilenborough C. J. m Heaward v. Hopkins, Doug. 44. n Middx. Court of Conscience, Stat. 23 G. 2. c. 33. s. 19. (110). k Coles v. Bell, Sittings after M. T. 49 Geo. 3. 1 Camp. N. P. C. 478. n. 1 Wils. (109) Denison J. doubted whether the replication of a latitat was good, because it was not material when the process issued. This was upon a supposition that the latitat was only process. 148. Indeed when the suing out 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. (110) 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. CHAP. V. ATTORNEY. Of Actions brought by Attornies and Solicitors for the Recovery of their Fees. Of the Statutes 3 Jac. 1. c. 7. § 1. 2 G. 2. c. 23. § 23. relating to the Delivery of Bills by Attornies, and 12 G. 2. c. 13. § 6. Liability of Attornies for Negligence and Unskilfulness. ATTORNIES and solicitors may maintain an action of debt, or of indebitatus assumpsit for the recovery of their fees. The latter form of action is that which is most usually adopted. If a solicitor or agent for a third person retain an attorney, and promise him his fees, indebitatus assumpsit will lie against such solicitor or agent. But it seems doubtful, whether in this case an action of debt would lies. An attorney may maintain an assumpsit for soliciting a cause in other courts, as well as in the court where he is attorney". To an action of assumpsit for fees due to the plaintiff as an attorney, the defendant may plead the statute of limitations, viz. that he did not promise or undertake within six years next before action brought. By stat 3 Jac. 1. c. 7. § 1. "No attorney, solicitor, "or servant to any, shall be allowed from his client "or master, for any fee given to any serjeant or coun"sellor, or for any sums of money given for copies to any officers in any court of record at Westminster, unless a Adm. in Bradford v. Woodhouse, c Aff. Bradford v. Woodhouse, Cro, b Ambrose and Roe, Skin. 217, 218., Adm. in Sands v. Trevilian, Cro. Car. 194. d Thursby v. Warren, Cro. Car. 159. e Oliver v. Thomas, Ld. Raym. 2. |