1834. FINCH v. BROOK. in effect dispenses with them." So, here, the plaintiff, by saying "I can't take it," dispensed with the production of the money, and cannot afterwards object to the insufficiency of the tender on the ground of non-production. [Lord Chief Justice Tindal.-Here, the defendant's attorney not only did not produce the money, but he did not even tell the plaintiff that he had it.] The special verdict finds that Tabram called on the plaintiff to pay the debt, and had the money in his pocket; but the defendant dispensed with its production. In Dean v. James (a), it was held that a plea of tender of 207. is supported by evidence of the tender of a large sum, though such larger sum was tendered as the sum which the creditor was to receive, and not as the sum out of which he was to take the 201. Mr. Serjeant Stephen, in reply, was stopped by the Court. Lord Chief Justice TINDAL.-The ground upon which I found my judgment in this case is this:-All the cases agree, that, to constitute a valid tender, there must either be an actual production of the money, or an express or implied dispensation. In the present case the money was not produced; and therefore the question is whether there was any actual or implied dispensation on the part of the plaintiff to excuse the non-production. Now, it must be remembered that the point arises on a special verdict, out of which we cannot travel in order to draw an inference that the jury have not found. There are many cases where a jury may find a general verdict for either plaintiff or defendant, when, if the facts were specially stated in the verdict, the court would be bound to find the other way: for instance, in trover, a demand and refusal being proved, the jury may infer a conversion; but, if they find by a (a) 1 Nev. & Man. 392, 4 Barn. & Adolph. 546. special verdict a demand and refusal, without finding a conversion, the court would not, in many cases, be warranted in inferring it. In Comyns's Digest (n), it is said: "The jury may find a general verdict for the plaintiff, where the special matter found would be against him; as, in trover, on proof of a demand and refusal, they may find for the plaintiff, but, if it be found specially, it will be adjudged no conversion. On proof of a voluntary feoffment to a son, the jury may find it fraudulent as to creditors &c., but, if it be found specially, it will not be judged so (o).” The present case seems to me to fall within that authority: we are not at liberty to imply that which the jury have not thought fit to find. I therefore think that the plea of tender has not been made out, and consequently that the judgment of the court below must be reversed. Mr. Justice GASELEE concurred. Mr. Justice VAUGHAN.-I an also of opinion that the judgment of the county court must be reversed; though, if the question had occurred at Nisi Prius, the judge would probably have directed the jury, under the circumstances stated in the special verdict, to find a dispensation. I think we, however, are not at liberty to draw such an inference. In Jones v. Barkley (p) it was held, that, where something is covenanted or agreed to be performed by each of two parties at the same time, he who was ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part. So, in cases of tender, there are many authorities to shew that the actual production of the money may be dispensed with. Mr. Justice BOSANQUET.-I concur with the rest of the (n) Com. Dig." Pleader," (S.), 8. (0) 10 Rep. 56. b. 1834. FINCH V. BROOK. 1834. FINCH บ. BROOK. court on the sole ground that the question arises in this case on a special verdict which does not find an actual tender. I am by no means prepared to say that the evidence given at the trial of the cause in the county court was not sufficient to warrant the jury in finding that the plaintiff dispensed with the actual production of the money: but I think the special finding does not enable us to come to that conclusion. (q) See Harding v. Davis, 2 Car. & Payne, 77. There, at an interview between the plaintiff and defendant, the defendant being willing to pay 107., a third person present offered to go up stairs and fetch that sum, but was prevented by the plaintiff's saying, "I can Judgment reversed (q). not take it." Lord Chief Justice Best held it to be a good tender, and that, although the defendant did not at the time take notice of what was done, yet his pleading it afterwards was a sufficient ratification of the act. Thursday, BRADLEY and Others v. BAILLIE. Nov. 13th. MR. HARRISON, on a former day, obtained a rule The court re fused to allow an an amendment ofa writ of ca. sa. calling on the defendant to shew cause why the writ of capias ad satisfaciendum issued in this cause should not be to the prejudice amended by inserting the sum of 387. 14s. therein as the real damages recovered in the cause, instead of 40%.—upon costs, and giving an affidavit stating that the sum for which final judgment was signed was 387. 14s., but that, by mistake, the writ of of the bail; but granted it on payment of all the bail time to render the de fendant. ca. sa. had been filled up with the damages laid in the declaration, instead of the sum for which the allocatur had been obtained. Mr. Richards shewed cause.- He produced affidavits alledging (amongst other things) that the plaintiffs had brought two separate actions against the bail upon their recognizance; that, in the action against one of them, the proceedings had been stayed and an exoneretur entered upon the bail-piece as to him, under a judge's order, on the ground of the plaintiffs' having given time to the principal; and that the second bail, not being aware of this fact, had pleaded to the action against him. He therefore submitted that the court would not allow the proposed amendment, inasmuch as it would prejudice the bail—or, at all events, not without imposing terms upon the plaintiffs. Lord Chief Justice TINDAL.-The justice of the case seems to me to be that the rule be made absolute, on payment of the costs of the action against the bail, and of the motion; the bail having one week's time to render the principal. Rule accordingly. 1834. BRADLEY v. BAILLIE. SYWOOD v. DOGHERTY. THE notice of bail in this case omitted to state that the bail had resided in the respective places of which they were described "for the last six months," as required by the 2nd rule of Trinity Term, 1 Will. 4 (a). They were not opposed. Thursday, Nov. 13th. A notice of bail omitting to state the residence of the bail" for the last six months," is an irregularity of which the court will take notice, though the bail Mr. Archbold submitted, that, by not opposing, the be unopposed. plaintiff had waived the irregularity. He cited Bigg v. Dick (b). There, notice was given of justification "of F. D. and S. A., the bail already put in for the defendant, and of whom the plaintiff had before had notice." No notice of bail had been given: but the Court held, "that, an exception having been entered, the plaintiff must have had notice of the place of abode of the bail when he entered the exception in the filacer's book." 1834. SYWOOD v. DOGHERTY. PER CURIAM.-Though the justification was not opposed, still it is better that we should in all cases adhere to the form given by the rule. The defendant may be allowed four days to give a fresh notice-the proceedings being stayed in the meantime. (c) See Fenton v. Warre, 1 Dowl. P. C. 295. Johnson's Bail, 1 Dowl. P. C. 438. Ward's Bail, 1 Dowl. P. C. 596. But see Figg's Bail, I Dowl. P. C. 124, where it was held to be sufficient to state the residence of the bail for the last six months in the notice of bail, without repeating it in the Rule according (c). notice of justification. And semble that the omission to state the residence of the bail for the last six months in the notice of bail, is not such a defect as will entitle the plaintiff to treat the notice as a nullity, and attach the sheriff— The King v. The Sheriff of Middlesex, 2 Dowl. P. C. 5. Friday, In the Matter of SARAH LUKE, an Infant, Wife of GEORGE LUke. Nov. 14th. By the 6th section of the 11 Geo. 4 & 1 Will. 4, c. 60, To meet the spe ces of the case, the court direct cial circumstan- is is enacted, "that, where any person seised or possessed of any land upon any trust or by way of mortgage shall be under the age of twenty-one years, it shall be lawful for such infant, by the direction of the court of Chancery, to ed the commissioners for taking the acknowledgment of a married woman (an infant) in their certificate made in pursuance of the 3 & 4 Will. 4, c. 79, s. 84, to omit the words "of full age." convey the same to such person and in such manner as |