STARTUP any other day within the time limited, and a tender is made, the tender is good. See Bacon's Abr. tit. Tender (D.) (1), Co. Litt. 202 a. MACDONALD. This is the distinction which prevails in all the cases-where a thing is to be done any where, a tender a convenient time before midnight is sufficient; where the thing is to be done at a particular place, and where the law implies a duty on the party to whom the thing is to be done to attend, that attendance is to be by daylight, and a convenient time before sunset. This is the meaning of the distinction in Withers v. Drew (2) referred to in Viner's Abr. Night (3), and cited on the argument, that things done in the night, where personal attendance of another is not necessary, are good; as an award made in the night before twelve, was held to be valid. The case of a reservation of rent with a covenant to pay it, affords a clear illustration of the principle above laid down. The tenant has until the last moment of the day to pay rent; and if he tender it to the lessor personally on the land, if he can find him, a convenient time before midnight, he is not liable to an action, Keating v. Irish (4); or to a distress, if he tender any time before it takes place. But as the rent issues out of the land, it is competent for the tenant to protect himself by being ready on the land at the door of the mansion-house, or the place most notorious, a convenient time, before sunset, for the rent to be counted over and received, and remaining there during that time, though the lessor be not there to receive it: Tinckler v. Prentice (5); Bro. Abr. tit. Tender, pl. 41; Hill v. Grange (6). And, on the other hand, if the lessor wishes to enforce a clause of re-entry for non-payment of rent, he must be on the land at the place and time before. mentioned, and there demand it. But if the parties meet at any time whatever on the last day, on or off the land, Cropp v. Hambleton (7), and the tender is made, the forfeiture (8) is saved. If, in this case, the goods had been deliverable at a particular place, the vendor would have been bound to deliver, and the vendee to accept, at that place; and the vendee need not have been there except a convenient time before sunset; but a tender to the vendee at the place at any other time of the day, there being convenient time to receive, examine, and weigh before the termination of that day, would have been good. (1) Citing 1 Inst. (Co. Litt.) 202, 211; 5 Co. Rep. 114; Cro. Eliz. 14. (2) Cro. Eliz. 676. (3) 15 Vin. Abr. 554. (4) 1 Lutw. 593. (5) 13 R. R. 684 (4 Taunt. 549). (6) Plowd. 173. (7) Cro. Eliz. 48. (8) Co. Litt. 202, 211; 1 Wms. Saund. 287, n. [ *626 ] STARTUP I therefore think that the tender was good in this case in point of MACDONALD. time, and, consequently, that the plaintiffs having been able to [ *627 ] meet with the defendant, and actually to tender the oil to him a sufficient time before midnight to enable the defendant to receive, examine, and weigh the oil, performed, as far as they could, their part of the contract, and were entitled to recover for the breach of it by the defendant. The judgment of the Court of Common Pleas must be reversed, and our judgment must be, on the facts found, that the plaintiffs tendered, and that the first plea, though supported in fact, was bad in law, and that *the plaintiffs are entitled to judgment non obstante veredicto. LORD DENMAN, Ch. J.: I cannot give my opinion on this case without expressing my distrust of its correctness, since all my learned brethren now present have arrived at the opposite conclusion. It is, however, some consolation that I agree with the Court of Common Pleas, and with the first impression made during the argument on several members of this Court. My own certainly remains unaltered by what I have heard. The train of authorities cited rather tended to confirm me in it, all applying to a tender of money contracted to be paid on a day certain; and they establish the principle that a tender on that day is not sufficient, but the tender must be made at a convenient time on that day. It may indeed be the uttermost convenient time; but in requiring that the time should be convenient, the law qualifies the obligation to accept money on a particular day from a regard to the ordinary wants, and understood expectations, of mankind. I cannot see why the same qualification should not be introduced in reference to the delivery of goods. Indeed, I should rather say that that consistency as well as reason exact it, and that a greater variety of circumstances may affect the question of convenience. Suppose a plea of tender of a sum of money on a day named, and a replication that it was not tendered in reasonable time. If issue were taken thereon, and the jury found, in general terms, that the tender was not reasonable on account of the lateness of the hour, I apprehend the plaintiff must succeed. But if the jury had further found that though the time was unreasonable by the lateness of the hour, there was full time for the plaintiff to have counted and weighed the money, an argument might have been raised, whether STARTUP v. this finding *did not involve a contradiction, as the law seems to regard no other circumstances as making the time of a tender of MACDONALD. money, reasonable. [ *628 ] But where the question is as to the delivery of bulky goods in a great commercial community, notoriously conducting its operations by certain rules known among all merchants, it seems to me obvious that the lateness of the hour may make a tender unreasonable, though the time may be sufficient for weighing, measuring, and warehousing. There ought to be opportunity as well as time. The known habits of the contracting parties may be taken into that account. Supposing it to be clear that such delivery cannot be made without a certain force of labourers to receive and stow away goods, and notorious that all labourers employed in that trade left their work at an earlier hour than that of the tender, I think a tender after that period would be unreasonable, and that the lateness of the hour might be truly stated as the cause. I cannot understand why this may not have been present to the mind of both parties when they joined issue, and of the jury when they found their verdict (1). Suppose this declaration had alleged a contract to deliver within fourteen days, and had added that "the plaintiffs delivered on the fourteenth day, but true it is that they delivered at an unreasonable time by reason of the lateness of the hour." True, the particular facts which would thus, with the lateness of the hour, show the tender unreasonable, might have been specially pleaded; e.g. the want of time to deliver the article, from its being contained in vessels of unusual form-the absence of all the servants, according to custom, from the warehouse *at the time of the tender-some particular usage of the trade with respect to the time for delivering such goods-the want of daylight, involving the necessity for using candles, and thus producing danger of fire to the stock in trade; these, or similar, facts might have been specially pleaded, and either contradicted or explained, and the opinion of the jury taken on the facts, whereupon ultimately the issue might depend. But if the party choose to take an issue, in general terms, on the entire state of facts, may he not do so? I apprehend that he may, and that he must be bound by a verdict found by the jury on the very (1) Quare, whether the jury could truly find that there was sufficient time to weigh, measure and warehouse the oil; if there were not sufficient time to collect the labourers, without [ *629 ] STARTUP v. question which he agrees to submit to their consideration, unless MACDONALD. the law distinctly sees that there can be no ground for pronouncing the tender unreasonable. I can discover no such impossibility; on the contrary, I can easily conceive cases in which, notwithstanding the sufficiency of time for all the particulars that appear in the finding of the jury, other circumstances may render it unreasonable and naught. My individual opinion, therefore, is that the judgment of the Common Pleas ought to be affirmed. 1843. Nov. 9. [ 672 ] [ *673 ] Judgment reversed. The Court of Error being bound, upon reversing the judgment of the Court below, to pronounce the judgment which that Court ought to have given, a discussion arose as to the form in which the judgment should be entered. It was ultimately ordered that judgment should be entered for the plaintiffs, as upon a verdict for them, on the second issue; and also for the plaintiffs non obstante veredicto, on the first issue. IN THE COURT OF COMMON PLEAS. DODD AND DAVIES v. ACKLOM (1). (6 Man. & G. 672-683; S. C. 7 Scott, N. R. 415; 13 L. J. C. P. 11; 7 Jur. 1017.) A. and B. demised a house, by lease in writing, to C., at a rent payable quarterly. The key was delivered to C.'s wife. C. entered into possession; but before the first quarter's rent became due (there having been some dispute as to arrears of rent and taxes), C.'s wife delivered the key back to A., who accepted it. B., after signing the lease, had never interfered. Held, that the delivering back of the key by the tenant, animo sursu reddendi, and its acceptance by the landlords, amounted to a surrender of the term by act and operation of law, within the Statute of Frauds. sum Held, also, that the jury were, upon the facts, warranted in finding that C.'s wife acted as his agent in surrendering the term, and that A. acted as agent for B. in accepting the surrender, and that B. was bound by the surrender and acceptance. ASSUMPSIT for use and occupation. Plea, non assumpsit. At the trial before Erskine, J. at the sittings for Westminster *in last Trinity Term, the following facts were proved in evidence. On the 7th of October, 1842, the plaintiffs, by lease in writing signed by both of them, demised a house to the defendant, at a yearly rent, payable quarterly. The defendant's wife received the key from the wife of the plaintiff Dodd, and the defendant (1) As to this case, see Smith's L. C., pp. 837-843, and the cases there notes to Doe v. Oliver, 11th ed., vol. ii. cited.-J. G. P. entered into possession, and after communicating with Dodd upon the subject, began to whitewash and paper part of the premises. The defendant afterwards discovered that a considerable amount of rent was in arrear to the superior landlord; that the land-tax and water-rate were also in arrear; and he thereupon remonstrated with Dodd. About Christmas the key of the front door was delivered up by the defendant's wife to Dodd, and accepted by him. It was contended on the part of the plaintiffs that this was not sufficient to constitute a surrender by act and operation of law, under the 29 Car. II. c. 3, s. 3, especially as it was not shown that the defendant's wife had authority to give up the key; and that, at any rate, a surrender to one plaintiff, would not enure as a surrender to both. The learned Judge told the jury that the plaintiffs were entitled to a verdict, unless the jury thought that the plaintiffs had, by some act, prevented the defendant from having a beneficial occupation of the premises; or unless the tenancy had been put an end to by all parties before any rent became due; and, further, that if the jury thought that the defendant's wife had authority from her husband to deliver up the possession by giving up the key, and had done so, and that the plaintiff Dodd had accepted it, also having authority from the other plaintiff so to do, that would amount to a surrender of the tenancy by act and operation of law, and the defendant would be entitled to a verdict. The jury having returned a verdict for the defendant, Byles, Serjt., in last Trinity Term, obtained a rule nisi for a new trial upon the ground of misdirection, and also that the verdict was against evidence. Upon the former point he renewed the objections taken at the trial, and cited Thomas v. Cook (1), Mollett v. Brayne (2), and Grimman v. Legge (3). Talfourd, Serjt. (with whom was Thomas) now showed cause: The questions were properly left to the jury. Under the circumstances the defendant would even have been justified in giving up possession of the house without the consent of the landlords; as in every letting of a house there is an implied contract that it is fit for habitation: Smith v. Marrable (4). But here, the landlords (1) 20 R. R. 374 (2 B. & A. 119; 2 Man. & Ry. 438). Stark. N. P. C. 408). (2) 11 R. R. 676 (2 Camp. 103; S. C. 2 Man. & Ry. 439, n.). (3) 32 R. R. 398 (8 B. & C. 324; 2 (4) 63 R. R. 493 (11 M. & W. 5). But see Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, 12 M. & W. 68. Dodd v. ACKLOM. [674] |