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Tender must be unconditional.

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the defendant's attorney called on the plaintiff, and said, "I come to pay you 1l. 12s. 6d. which the defendant owes you;" that the attorney put his hand in his pocket, but did not produce the money, the plaintiff saying, “I can't take it; the matter is now in the hands of my attorney." It was held that, upon this finding, the defendant was not entitled to judgment. Finch v. Brook, 1 N. C., 253; S. C., 1 Scott, 70. But, the court seem to have been of opinion that a dispensation of the production might have been inferred from the above facts, and found by the jury. See Ex parte Danks, 2 D. M. & G. 936; 22 L. J., Bky. 73.

Tender must be unconditional.] In order to support a plea of tender, there must be evidence of an unqualified offer. An offer of payment, clogged with a condition that it should be accepted as the balance due, does not amount to a legal tender. Evans v. Judkins, 4 Camp. 156; Huxham v. Smith, 2 Camp. 21; Strong v. Harvey, 3 Bing. 304; Hough v. May, 4 Ad. & E. 954. But, a tender, accompanied by a statement by the defendant that "he has come to pay the amount of his (the plaintiff's) bill," is sufficient, though the plaintiff insisted that "it was not his bill," and refused it on that account; for such statement is no more than is implied in every tender, viz., that the debtor intends to cover the whole demand, and asserts that it does so. Henwood v. Oliver, 1 Q. B. 409; Bowen v. Owen, 11 Q. B. 130. So, a tender of the full amount demanded, accompanied with a protest is good. Manning v. Lunn, 2 Car. & K. 13; Thorpe v. Burgess, 8 Dowl. 603; Scott v. Uxbridge & Rickmansworth Ry. Co., L. R., 1 C. P. 596; Sweny v. Smith, L. R., 7 Eq. 324; and Simmons v. Wilmott, 3 Esp. 94, seems to be not law. If the tender cannot be accepted, without supplying evidence of an admission that no more is due, then it is conditional, and therefore bad. Bowen v. Owen, supra. So, where a tender is accompanied with a demand of a receipt in full of all demands. Glasscott v. Day, 5 Esp. 48; Higham v. Baddelý, Gow, 213; Ryder v. Townsend, 7 D. & Ry. 119. Where the defendant tendered the money, saying, "If you will give me a stamped receipt, I will pay you the money," and the plaintiff refused to take it, Abbott, C.J., held this to be no tender. Laing v. Meader, 1 C. & P. 257. It was held in that case that the debtor ought to present a piece of paper, stamped with the ad valorem receipt stamp, to the creditor, and require him to give a receipt; if the latter refused to do so, and to pay for the receipt stamp, he was liable to a penalty by the 43 Geo. 3, c. 126, ss. 4, 5. This enactment was repealed by 33 & 34 Vict. c. 99, and under the Stamp Act, 1870, s. 123, the payee of money is liable to a penalty if, in any case where a receipt would be liable to duty, he refuse to give a receipt duly stamped, and he is bound also, under sect. 121, to cancel the stamp if adhesive; but as there is no provision, as in the earlier Act, that the debtor must present a receipt for the creditor to sign, the creditor must now find the stamp; as, however, the stamp is a uniform one of 1d., this is productive of no great hardship. But, though a party, tendering money, cannot, in general, demand a receipt for it, yet where the creditor did not object to the demand of a receipt, but only that the sum was insufficient, the tender was held good. Richardson v. Jackson, 8 M. & W. 298. Some doubt seems to have been expressed in this case as to whether the demand of a receipt, in any case, would render a tender insufficient. But, where two quarters' rent, due Michaelmas and Christmas, was demanded, and the tenant tendered the Christmas only, and demanded a receipt for that quarter's rent, this was held to be no sufficient tender even of that quarter's rent, the contest between the parties being whether one or two quarters' rent was due. Finch v. Miller, 5 C. B. 428. Where the defendant tendered a sum of money, and at the same time delivered a counter-claim 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 insufficient. Brady v. Jones, 2 D. & Ry. 305.

Whether a tender be conditional or not is a question for the jury, where the words or facts accompanying it are disputed. Eckstein v. Reynolds, 7 Ad. & E. 80. But, if the goodness of it turns on the meaning or legal effect of a letter or writing accompanying it, then the question is for the judge; semble, Bowen v. Owen, 11 Q. B. 130. And the same rule would seem, on principle, to apply to unwritten expressions used by the party tendering where the tenor of them is not disputed.

Tender-prior or subsequent demand and refusal.] The defence will be defeated by showing a demand and refusal, prior or subsequent to the tender. Bennett v. Parker, I. R., 2 C. L. 89, Ex. ; Poole v. Tumbridge, 2 M. & W. 223, 226; 1 Wms. Saund. 33 c, (2). The demand and refusal must now be replied specially. Rules 1883, O. xix., r. 15, ante, p. 283. The demand must be proved to be of the precise sum tendered. Spybey v. Hide, 1 Camp. 181; Rivers v. Griffiths, 5 B. & A. 630. The demand must be by a person authorized at the time to receive the money; and therefore a demand by a clerk of the plaintiff's solicitor (who does not bring his master's receipt) is insufficient. Coore v. Callaway, 1 Esp. 115. And the subsequent adoption of an unauthorized demand is not enough. Story on Agency, s. 247. A subsequent demand upon one of two joint debtors is sufficient. Peirse v. Bowles, 1 Stark. 323. A letter sent by the plaintiff and received by the defendant, demanding the sum tendered, is not sufficient evidence of a subsequent demand; for, at the time of the demand, the defendant should have an opportunity of immediately paying the sum demanded. Edwards v. Yeates, Ry. & M. 360; but see Hayward v. Hague, 4 Esp. 93.

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ACTIONS ON SPECIALTIES.

ACTION ON COVENANTS RELATING TO LAND.

The evidence in this action depends upon the particular breaches of covenant alleged by the plaintiff, and the mode in which they are stated or denied in the pleadings. A covenant is nothing more than an agreement expressed in an instrument in writing, executed as a deed. Such agreements, after proof of the deed in which they are contained, are subject to the rules of construction applicable to ordinary documents. As land is for the most part conveyed and leased by instruments under seal, certain covenants usually inserted in these instruments are frequently the subject of an action. The evidence necessary in the proof of a breach of several of the more important of these covenants will here be given.

Covenants in general.] There need be no formal words of covenant. Any words in a deed, showing an agreement to do a thing, make a covenant; as "that the lessee shall repair;" Com. Dig. Covenant, (A. 2). “It is agreed that A. shall pay B. for his goods," is a covenant by B. to deliver them to A., as well as by A. to pay. So, a lease by A. to B. "excepting a room and free passage to it," is a covenant by B. not to disturb the passage, but is not a covenant as to disturbing in the room. So, a covenant may be in the form of a proviso or condition. Id.; Brookes v. Drysdale, 3 Č. P. D. 52. A recital of an intended fine in an agreement may amount to a covenant to levy one. Id.: Farrall v. Hilditch, 5 C. B., N. S. 840; 28 L. J., C. P. 221. So the recital in a lease of the intention of the parties that a mill should be erected, and a covenant to leave it in repair, amount in law to a covenant to erect it. Sampson v. Easterby, 9 B. & C. 505; 6 Bing. 644, Ex. Ch. But, a conveyance by A. to a railway company of land, "intended to be formed into a new course" for a river, and a covenant by the company to make a bridge over the new cut for A.'s use, does not imply a covenant to make the new cut or divert the river. Rashleigh v. S. E. Ry. Co., 10 C. B. 612. This case was, however, doubted in the House of Lords on an appeal, and was compromised. See Knight v. Gravesend, &c. Waterworks Co., 2 H. & N. 6; 27 L. J., Ex. 73. An acknowledgment by A. in a deed that he owes B. £- -, may be treated as a covenant to pay, if an intention to enter into an engagement to pay appear on the face of the deed; Saunders v. Milsome, L. R. 2 Eq. 573; but, not if the acknowledgment be merely for a collateral purpose. Courtney v. Taylor, 6 M. & Gr. 851; Holland v. Holland, L. R., 4 Ch. 449; Jackson v. N. E. Ry. Co., 7 Ch. D. 573. See also Knight v. Gravesend, &c. Waterworks Co., supra. An indenture between A. and B. provided that A. should buy all the coal used by him, from B., but that B. "should not be compelled to supply more than 500 tons per week," and in case of inability to supply "to the extent agreed upon," and notice thereof to A., A. might buy elsewhere: this was held to be a covenant by B. to supply coal to the extent of 500 tons unless unable from substantial cause. Wood v. Copper Miners' Co., 7 C. B. 906. A covenant by the lessee of a coal mine to draw to, and deposit on the surface of the demised premises by some of the pits or shafts of the demised mine, for the use of the lessor, all the manure made underground, does not imply a covenant by the lessee to make pits or shafts on the demised land, although such pits may have been contemplated by both parties. James v. Cochrane, 7 Exch. 170; 21 L. J., Ex. 229; Ex. Ch., 8 Exch. 556; 22 L. J., Ex. 201.

By the 8 & 9 Viet. c. 106, s. 4, in deeds executed since the 1st October, 1845, the word "give" or "grant" shall not imply any covenant in respect

of real property, except by force of some Act of Parliament (such as by the Lands Clauses Consolidation Act, 1845, s. 132). This is in reference to the old authorities by which covenants were implied from the words “give," "grant," and "demise;" Com. Dig. Covenant, (A. 4). The former As does not restrain the effect of the word "demise," which still implies a covenant for title, but such implied covenants are restrained by express covenants contained in the same deed and incompatible with them; fe expressum facit cessare tacitum; Shep. Touch. cap. 7, p. 165. Vide post, pp 659, 660. As to the covenants for title now implied in conveyances by virtue of the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict c. 41, vide post, p. 657.

The following are some of the most material issues arising in actions on deeds and bonds generally :

Evidence on defences denying execution of deed.] By Rules, 1883, O. xix. r. 20, ante, p. 283, under this defence, which now in part takes the place of the old plea of non est factum, the plaintiff need only produce and prove the execution of the deed. As to the proof of the execution of corporation deeds, vide ante, p. 123; of private deeds, ante, p. 124, et seq. Where the action is not for any liquidated sum, it is also necessary to prove the amount of damage.

Formerly, where a deed was pleaded according to its supposed legal effect, non est factum put in issue not only the execution of it, but the legal effect as stated. North v. Wakefield, 13 Q. B. 536. The plea in such a case, in effect, denied execution of any deed, corresponding with the one described in the count. But where the deed was recited verbatim, the construction was for the court on demurrer, and non est factum only denied the execution, or the accuracy of the transcript of the deed set forth. Semb. S. C. It seems, however, that Rules, 1883, O. xix., rr. 15, 17, ante, p. 283, will now in many cases require a special defence to be pleaded.

Under special defences the defendant may show that the deed was executed as an escrow, and was to take effect as a deed only upon some given event which has not happened; or that the deed, after being sealed, was tendered to the covenantee, and he expressly rejected it; ante, p. 129; or in the case of a corporation deed, irregularity, or want of due authority in the execution of the deed; ante, p. 123.

If the seal, other than that of the defendant, be removed, the deed may be given in evidence, if it be a several deed; Matthewson v. Lydiate, 5 Rep. 22; Cro. Eliz. 408; contra, if it be a joint or joint and several deed. Id.; Seaton v. Henson, 2 Lev. 220.

Where a bond is produced at the trial in a cancelled state, e.g., with the seal broken off, the question seems to be whether the bond was cancelled before or after defence pleaded. Nicholls v. Haywood, Dyer, 59 a; Michael v. Scockwith, Cro. Eliz. 120; Whelpdale's case, 5 Rep. 119; and see Todd v. Emly, 11 M. & W. 1. But the party relying on the deed may show that the seal was removed under circuinstances not amounting to a cancellation. Vide ante, pp. 589, 590.

If a bond be sealed and delivered to a man's use, and he die before notice, his executors may sue upon it. Dyer, 167.

In an action by lessor, on covenants contained in a lease under seal, and which depend on the existence of the term, as, for instance, those to repair and pay rent during the term, the defendant may set up as a special defence that the lease has not been executed by the lessor. Swatman v. Ambler, 8 Exch. 72; 22 L. J., Ex. 81; Pitman v. Woodbury, 3 Exch. 4. Quære, if he can do so after he has entered and occupied during the term. and Cooch v. Goodman, 2 Q. B. 580. And such a defence is not to a covenant to invest money contained in a mortgage deed.

Vide S. C. applicable Morgan v.

Denial of Execution of Deed.

637

Pike, 14 C. B. 473 ; 23 L. J., C. P. 64. If the defendant got all the title he stipulated for, an informality in the execution by the lessors will not affect the lessee's covenants. How v. Greek, 3 H. & C. 391; 34 L. J., Ex. 4; Toler v. Slater, L. R., 3 Q. B. 42.

The lease may be proved prima facie by producing the counterpart executed by the defendant, without notice to produce the original lease. Houghton v. Koenig, 18 C. B. 235; 25 L. J., C. P. 218. But the defendant may put in the original lease, and show that it is void by reason of the nonexecution thereof by the lessor. Wilson v. Woolfryes, 6 M. & S. 341; see further, supra. Where there is a discrepancy between the two instruments the lease shall prevail; Sheppard's Touchstone, 52; unless the lease only is inconsistent with itself, in which case reference may be made to the counterpart, to ascertain and correct the mistake. Burchell v. Clark, 2 C. P. D. 88, C. A. But generally where an indenture is in two parts, one party executing each part, if there is a material variation between the two parts, the indenture is void for want of mutuality. Wynne's case, L. R., 8 Ch. 1002. Where one of several covenantees sued as sole covenantee without joining the others or showing their death, this was formerly a variance on a plea denying the contract; but if one of several joint covenantors were sued without naming or joining the rest, this was only pleadable in abatement; 1 Wms. Saund. 154 a, (1). A covenant by A., B., and C., that they or some of them will pay, &c., may be sued as on a covenant by any one of them. Caldwell v. Becke, 2 Exch. 318.

A question formerly arose under a denial of the contract, or other appropriate defence, whether the plaintiffs, who sued, were the proper parties to the action. Where the covenant is with A. and B. jointly, yet if the interest of each is several, as on a conveyance of distinct lands by each, they could not join as plaintiff's; 1 Wms. Saund. 154, (1); although they can now do so under Rules, 1883, 0. xvi., r. 1, ante, p. 86. But, if the covenant is expressly made to several, though for the benefit of one only, it is a joint covenant and all should join. Anderson v. Martindale, 1 East, 497. The rule, as expressed in the latest cases, is that where the covenant is to or with several persons, it will be construed to be joint or several, according to the interest of the covenantees apparent in the deed, provided that the words admit of such construction. But, if the covenant be expressly and unambiguously a joint one, then the interest will not control the construction, and all the covenantees must join. Sorsbie v. Park, 12 M. & W. 146; Hopkinson v. Lee, 6 Q. B. 964; Haddon v. Ayers, 1 E. & E. 118; 28 L. J., Q. B. 105.

The benefit of an indivisible covenant, e.g., to repair or work mines, on a joint demise by tenants in common, runs with the entire reversion only; and therefore all the covenantees or their representatives must join in suing on a breach of the covenant. Thompson v. Hakewell, 19 C. B., N. S. 713 ; 35 L. J., C. P. 18, following Foley v. Addenbrooke, 4 Q. B. 197; and on the authority of Litt., s. 314; Co. Litt. 196 b; see also Bradburne v. Botfield, 14 M. & W. 559; Wakefield v. Brown, 9 Q. B. 209; Keightley v. Watson, 3 Exch. 716; Magnay v. Edwards, 13 C. B. 479; Pugh v. Stringfield, 3 C. B., N. S. 2; 27 L. J., C. P. 34. It would seem that if the covenant, in such a lease, were to pay a money or other divisible rent, the tenants in common or their representatives might maintain separate actions for their respective shares of the rent. See Thompson v. Hakewell, supra.

The Rules, 1883, O. xvi., as to nonjoinder and misjoinder of parties, will be found ante, pp. 86, 87. It seems that under them, objection to the nonjoinder of a plaintiff must be taken before the trial. See cases cited ante, p. 87, and Werderman v. Société Générale d'Electricité, 19 Ch. D. 246, C. A., where, however, the judgment of Jessel, M.R., was based (vide Id. 251), on an erroneous view of the practice at common law, vide Thompson v. Hakewell,

supra.

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