tees not having given B. any notice of claim on the balance. Bailey v. Finch, L. R., 7 Q. B. 34. See also Taylor v. Taylor, L. R., 20 Eq. 155. But where A. had a separate account with a banker C., which was overdrawn, and A. and B. had also, as executors of D., a joint account with C., A. being residuary legatee of D., and A. and B. jointly liable for some unpaid claims; it was held that one account could not be set off against the other, because a Court would not, without any terms, or any further inquiry, compel B. to transfer the joint account to A. alone. Ex pte. Morier, 12 Ch. D. 491, C. A. A set-off is not an equity which runs with a bill or note indorsed when overdue; and therefore a set-off between the maker and indorser, of such a note, cannot be set up against the indorsee. Whitehead v. Walker, 10 M. & W. 696; Oulds v. Harrison, 10 Exch. 572; 24 L. J., Ex. 66; Ex pte. Swan, L. R., 6 Eq. 344. An antecedent debt cannot be set off against an instalment of a pension which is by statute not transferable. Gathercole v. Smith, 17 Ch. D. 1 C. A. ; 7 Q. B. D. 626, C. A.

A judgment might be pleaded by way of set-off though a writ of error be pending thereon. Reynolds v. Beerling, cited 3 T. R. 188; see Curling v. Innes, 2 H. Bl. 372; and, where in an action on a promissory note for 30!, the plaintiff took a verdict for the whole sum, and the defendant had at the same sittings an action against the plaintiff for 11., to which there was a set-off of the note, the court held that, notwithstanding the verdict, the note might be set off. Baskerville v. Brown, B. N. P. 180; 2 Burr. 1229; Evans v. Prosser, 3 T. R. 186. A debt cannot be set off till it is actually due. Rogerson v. Ladbroke, 1 Bing. 99; but where it has become due after action brought, it may now be so pleaded. Ellis v. Munson, ante, p. 627. A debt barred by the Statute of Limitations cannot be set off; and if pleaded the plaintiff may reply the statute; B. N. P. 180; and it must be replied if relied on. Rules, O. xix., r. 15, ante, p. 283. See as to this reply, ante, p. 627.

A defendant may counter-claim a several claim, against one of two joint plaintiffs, and another several claim, against the other plaintiff. Manchester &c. Ry. Co. v. Brooks, 2 Ex. D. 243.

By Bankrupts.] The cases on mutual credit and set-off between a bankrupt and other persons will be found, post, Part III., tit. Actions by Trustees of Bankrupts. Where one of several joint debtors becomes bankrupt, there was no set-off. New Quebrada Co. v. Carr, L. R., 4 C. P. 651.

By and against executors.] Vide post, Part III., tit. Actions by and against

executors.

By factors and agents.] An agent employed to recover a sum of money is entitled to retain a just allowance for his labour and service therein, and, as such allowance is not in the nature of a cross demand or mutual debt, he may give it in evidence under a denial of the debt in an action for money had and received. Dale v. Sollet, 4 Burr. 2133. See also the cases cited ante, p. 627.

Where a factor sells goods without disclosing the name of his principal, the purchaser, being ignorant of the fact, in an action by the principal for the price, may set off a debt due to himself from the factor. Rabone v. Williams, 7 T. R. 360, n.; George v. Clagett, 7 T. R. 359; Carr v. Hinchliff, 4 B. & C. 547. So if, on a sale of goods to defendant, the agent hold himself out as owner, and not as agent of the plaintiff, the real owner, and the jury find that the plaintiff ostensibly allowed him to do so, then the plaintiff's claim is subject to any right of set-off existing between the agent and defendant. Ramozotti v. Bowring, 7 C. B., N. S. 851; 29 L. J., C. P. 30; Borries v. Imperial Ottoman Bank, L. R., 9 C. P. 38; Ex pte. Dizon, 4

Set-off by Factors and Agents.-Tender.

629 Ch. D. 133. But, if the factor was known to be such, and to sell in that character, no such set-off can be pleaded against the principal; Fish v. Kempton, 7 C. B. 687; even though the defendant did not know who the principal was; Semenza v. Brinsley, 18 C. B., N. S. 467; 34 L. J., C. P. 161. See Maspons v. Mildred, 9 Q. B. D. 530, C. A.; 8 Ap. Ca. 874, D. P., cited ante, p. 539; and if, before the goods are all delivered, and before any part is paid for, the purchaser is informed that they belong to the plaintiff, it has been ruled that the purchaser cannot set off a debt due to him by the factor. Moore v. Clementson, 2 Camp. 22; see Warner v. M'Kay, 1 M. & W. 591; on this last case see Fish v. Kempton, 7 C. B.,687, 693, per Cresswell, J. If the purchaser buy through an agent, the knowledge of the agent that the apparent seller is an agent, will affect the purchaser, and exclude the set-off. Dresser v. Norwood, 17 C. B., N. S. 466; 34 L. J., C. P. 48, Ex. Ch. Where A.'s agent, B., by A.'s authority, employs a subagent, C., to sell A.'s goods in B.'s name, there is no privity between A. and C. (vide ante, p. 539), and in an action by A. against C. for the price realised, C. may set off any sum due from B. to C. New Zealand, &c. Land Co. v. Watson, 7 Q. B. D. 374, C. A.; Kaltenbach v. Lewis, 23 Ch. D. 54, 84, C. A. But in the case of goods sold after the revocation of C.'s authority by B.'s death, no such set-off is available, as the sale is wrongful; S. C. This head of set-off arises from the rule of law that a vendor, who accredits his agent and authorises him to contract, as principal, with a purchaser, who knows him only as principal, cannot, by resuming the character of principal, deprive his vendee of the equities which he has against the apparent vendor, whether by common law (as by payment), or by a set-off. It has been held that a broker (whose character differs materially from that of a factor), in selling goods without disclosing the name of his principal, acts beyond the scope of his authority, and that the buyer, therefore, cannot set off a debt due from the broker to him, in an action for the price by the principal; Baring v. Corrie, 2 B. & A. 137; though, of course, the relation is capable of being modified by the course of dealing between the broker and his principal. See notes to George v. Clagett, 2 Smith's Lead. Cases. A mutual credit with an agent who becomes bankrupt is not within the principle of George v. Clagett, supra, in a case where the damages are unliquidated. Turner v. Thomas, L. R., 6 C. P. 610.

If a creditor sues one of two debtors jointly liable, the defendant may show that fact, and plead a set-off of a debt, due from plaintiff to the defendant, and his co-debtor. Stackwood v. Dunn, 3 Q. B. 822.

In action by company in course of winding up.] See post, Part III., tit. Actions by companies-Companies Act, 1862-Special defences to callsSet-off.

To action by assignee of chose in action.] A builder D. entered into a contract with the defendant to build a house; D. assigned his interest in the contract to the plaintiff, who sued the defendant thereon under J. Act, 1873, s. 25 (6), ante, p. 281, it was held that the defendant might set off or deduct from the plaintiff's claim, the damages he had sustained by D.'s breach of the contract, but could not recover damages against the plaintiff. Young v. Kitchin, 3 Ex. D. 127.

Tender.

On issue joined as to the tender, the date of the writ, as stated on the statement of claim, is evidence of the commencement of the action; see Whipple v. Manley, 1 M. & W. 432.

The defence of tender is only applicable to cases where the party pleading has been guilty of no breach of his contract. Hume v. Peploe, 8 East, 16, 170, per Ld. Ellenborough, C.J. Hence, where a debt is payable on a day certain, as on an acceptance, a defence of payment post diem is generally inapplicable. S. C.; Poole v. Tumbridge, 2 M. & W. 223; 2 Wms. Saund. 48b, (i). Where a note is payable on demand, a tender of the amount and interest de die in diem is a good defence. Norton v. Ellam, 2 M. & W. 461, 463, per Parke, B.

By whom a tender must be made.] The tender need not be made by the debtor himself; it is sufficient if made by his agent; and a tender by an agent, at his own risk, of more than the money given to him by his principal, is good. Read v. Goldring, 2 M. & S. 86, post, p. 631.

To whom a tender must be made.] A tender to a person authorized by the creditor to receive money for him is sufficient. Goodland v. Blewith, 1 Camp. 477; Kirton v. Braithwaite, 1 M. & W. 310. Where a clerk, in the habit of receiving money for his master, was directed by him not to receive the sum in question, for that he had put it into the hands of his attorney, and the clerk, on tender made, refused to receive the money, assigning the reason, it was held to be a good tender to the principal. Moffat v. Parsons, 5 Taunt. 307. So if he refuse, saying he had no instructions. Finch v. Boning, 4 C. P. D. 143, per Ld. Coleridge, C.J. But, a tender made to the managing clerk of the plaintiff's attorney, who at the time disclaimed any authority from his master to receive the debt, was held insufficient. Bingham v. Allport, 1 Nev. & M. 398; accord. per Parke, B., Watson v. Hetherington, 1 Car. & K. 36. A tender of the debt sued for to the solicitor on the record, while he continues to be such, is a good tender to the principal. Crozer v. Pilling, 4 B. & C. 26. And a tender to a person in the office of the plaintiff's solicitor, to whom the defendant was referred by the clerk in the office, and who refused the tender only as being not enough, was held a good tender without showing who that person was. Willmot v. Smith, M. & M. 238. So, a tender to a person in the plaintiff's (a merchant) place of business, who appeared to be conducting it, is good, though not, in fact, entrusted to receive money. Barrett v. Deere, Id. 200. But it is otherwise where the payment is not connected with the plaintiff's business, but quite collateral to it. Sanderson v. Bell, 2 Cr. & M. 304. Where the money was brought to the house of the plaintiff and delivered to his servant, who appeared to go with it to his master and returned saying that his master would not take it, it was held to be evidence from which the jury might infer a tender. Anon., 1 Esp. 349. A tender of a partnership debt to one of several partners is sufficient. Douglas v. Patrick, 3 T. R. 683.

Tender to what amount.] Tender of a part of one entire debt is inoperative; Diron v. Clark, 5 C. B. 365; and the debtor cannot apply a set-off in reduction of the amount due so as to make a tender of the balance good. Searles v. Sadgrave, 5 E. & B. 639; 25 L. J., Q. B. 15; Phillpotts v. Clifton, 10 W. R. 135, M. T. 1861, Ex. If the objection appear on the record, the defence may be objected to in point of law; otherwise the plaintiff must reply, that the sum tendered was part of a larger amount due, which formed one entire cause of action. Hesketh v. Fawcett, 11 M. & W. 356; Dixon v. Clark ; Searles v. Sadgrave, supra. If a man tenders more than he ought to pay it is good; for the other ought to accept so much as is due to him. Wade's case, 5 Rep. 114; Astley v. Reynolds, 2 Str. 916. Thus proof of a tender of 201. 98. 6d. in bank notes and silver will support a plea of tender of 201. Dean v. James, 4 B. & Ad. 546. But, it seems that such a tender is only

Tender-in what kind of Money.

631

good where it is made in moneys numbered, so that the creditor may take what is due to him; therefore a tender of a 5l. note, requiring change, is not good. Betterbee v. Davis, 3 Camp. 70; Robinson v. Cook, 6 Taunt. 336; Watkins v. Robb, 2 Esp. 711; Brady v. Jones, 2 D. & Ry. 305. But, a tender of too much, without requiring change, is good. Read v. Goldring, 2 M. & S. 86. So, tender of enough to pay one of several items in a bill if offered in satisfaction of the whole, is not good; but, if specifically applied by the debtor to that one item at the time of payment it is a good tender. Hardingham v. Allen, 5 C. B. 793. And, where a greater sum is tendered than the sum pleaded, and the creditor refuses to receive it only on the ground that the amount is not sufficient, and not on account of the form of the tender, the tender is good. Black v. Smith, Peake, 88; Saunders v. Graham, Gow, 121. So, where defendant laid down a gross sum in coin, and desired the plaintiff to tell him what was due, and to take principal and interest out of it, this was held good. Bevans v. Rees, 5 M. & W. 306. Where a party has several demands, for unequal sums against several persons, a tender of one sum for the debts of all, is not a good tender of any one of the debts. Strong v. Harvey, 3 Bing. 304. A tender to one of several partners, including a debt due to the partnership, and also a debt due to that one partner individually, is a good tender of the partnership debt, unless objected to on account of the form of the tender. Douglas v. Patrick, 3 T. R. 683; and see Black v. Smith, supra. A tender to the creditor's solicitor, who has demanded payment, need not include the costs of the solicitor's letter. Kirton v. Braithwaite, 1 M. & W. 310; and see Caine v. Coulton, 1 H. & C. 764; 32 L. J., Ex. 97.

Tender-in what kind of money.] By the Coinage Act, 1870, (33 & 34 Vict. c. 10), s. 20, and sched. 2, the stats. 56 Geo. 3, c. 68, and 29 & 30 Vict. c. 65, are repealed, subject to the provision that (3) "Every branch of the mint which at the passing of this act" (4th April, 1870) "issues coins in any British possession shall, until the date fixed by any proclamation, made in pursuance of this act, with respect to such branch mint, continue in all respects to have the same power of issuing coins, and be in the same position as if this act had not passed, and coins so issued shall be deemed, for the purpose of this act, to have been issued from the mint."* By sect. 4, "A tender of payment of money, if made in coins which have been issued by the mint in accordance with the provisions of this act, and have not been called in by any proclamation made in pursuance of this act, and have not become diminished in weight, by wear or otherwise, so as to be of less weight than the current weight, that is to say, than the weight (if any) specified as the least current weight in the first schedule to this act, or less than such weight as may be declared by any proclamation made in pursuance of this act, shall be a legal tender,—

In the case of gold coins for a payment of any amount;

In the case of silver coins for a payment of an amount not exceeding 40s., but for no greater amount;

In the case of bronze coins for a payment of an amount not exceeding 1s., but for no greater amount.

Nothing in this act shall prevent any paper currency which under any act, or otherwise, is a legal tender from being a legal tender."

The schedule gives least current weights in the case of gold coins only. Sect. 11 empowers her majesty in council by proclamation, among other

* Under 29 & 30 Vict. c. 65, s. 1, the sovereigns and half-sovereigns issued by the branch mint of New South Wales were made, and have continued to be a legal tender.

things (5) To call in coins; (6) To direct that any coins other than gold, silver or bronze, may be current and a legal tender up to 58. ; (7) To direct that coins coined in any foreign country may be a legal tender at prescribed rates, having regard to the weight and fineness of the coin as compared with the current coins of the realm; (8) To direct the establishment of branch mints in her majesty's dominions.

By the 3 & 4 Will. 4, c. 98, s. 6, it is provided that a tender of a note or notes of the Bank of England, expressed to be payable to bearer on demand, shall be a legal tender to the amount expressed in such note or notes for all sums above 51. on all occasions on which any tender of money may be legally made, so long as the Bank of England shall continue to pay on demand their said notes in legal coin; provided that no such note shall be deemed a legal tender of payment by the Bank of England, or any of its branch banks. It may be observed that these notes are not a legal tender in Ireland, 8 & 9 Vict. c. 37, s. 6; or, Scotland, Id. c. 38, s. 15.

The party to whom the tender is made is not obliged to state his objection to receiving it, but, if he does so, he must rely on the objection he states, and he will be taken to have waived other objections. Thus, if he claim a larger amount than that offered, and give that alone as a reason for not accepting it, he cannot afterwards object that the tender was in country bank notes; per Bayley, B., in Polglass v. Oliver, 2 C. & J. 17; Lockyer v. Jones, Peake, 180, n. A tender of a banker's cheque may be good under the like circumstances. Wilby v. Warren, Tidd. Prac. 8th ed. 187; Jones V. Arthur, 8 Dowl. 442.

Tender-money must be produced.] The actual production of the money due is necessary, unless the creditor dispense with the production of it at the time, or does anything which is equivalent to a dispensation. Thomas v. Evans, 13 East, 101; Polglass v. Oliver, supra. In Thomas v. Evans, supra, the defendant left 10l. with his clerk for the plaintiff, of which the clerk informed the plaintiff when he called, and the plaintiff said he would not receive the 107. nor anything less than his whole demand, but the clerk did not produce the 101., this was held to be no tender; and Dickinson v. Shee, 4 Esp. 68, is to the same effect. But, where the defendant went to the plaintiff and told him he had 8l. 188. 6d. in his pocket, which he had brought for the purpose of satisfying his demand, but the plaintiff told him, "he need not give himself the trouble of offering it, for that he would not take it," the tender was held to be good. Douglas v. Patrick, 3 T. R. 684; and see Ryder v. Townsend, 7 D. & Ry. 119. The agent of the defendant met the plaintiff in the street, and told him that he was come to settle the business between the defendant and him, and that he was desired by the defendant to offer him 41. ; the plaintiff said he would not take it ; the witness then said he would give him the other 10s. out of his own pocket, and run the risk of being repaid; he then pulled out his pocketbook, and told the plaintiff that, if he would go into a neighbouring publichouse, he would pay him, but the plaintiff said he would not take it; this was held to be a good tender of 4l. 10s. Read v. Goldring, 2 M. & S. 86. Where a witness stated that the defendant was willing to give the plaintiff 10!., and the witness offered to go and fetch that sum, but that the plaintiff said "she need not trouble herself, for he could not take it," this was held to be a good tender. Harding v. Davies, 2 C. & P. 77. And see also Polglass v. Oliver, supra, from which it would appear that the tender in Thomas v. Evans, supra, ought to have been held sufficient. Where money was offered by letter, which the plaintiff declined by letter, saying, “I decline your tender," this was held insufficient. Pourney v. Blomberg, 14 Sim. 179. On a plea of tender of 1l. 12s. 6d., the jury found, specially, that