1 Bro. Tend. pl. 39; Bac. Abr. Tender, B.; Warner v. Harding, Latch, 70.
2 Black v. Smith, Peake, 88.
3 Goodland v. Blewith, 1 Camp. 477.
4 Thetford v. Hubbard, 22 Vt. 440.
5 Evans v Judkins, 4 Camp. 156; Strong v. Harvey, 3 Bing. 304; 11 Moore, 72; Bevans v. Rees, 5 M. & W. 306; 7 Dowl. P. C. 510; Loring v. Cooke, 3 Pick. 48; Hepburn v. Auld, 1 Granch, 321; Brown v. Gil-more, 8 Greenl. 107; Thayer v. Brackett, 12 Mass. 450; Jennings v. Major, 8 C. & P. 61; Richardson v. Boston Chemical Laboratory, 9 Met. 42.
6 Ryder v. Lord Townsend, 7 Dowl. & Ry. 119; Laing v. Meader, 1 C. & P. 257; Griffith v. Hodges, Ib. 419; Robinson v. Ferreday, 8 Ib. 752; Richardson v. Jackson, 8 M. & W. 298; Loring v. Cooke, 3 Pick. 48; Hepburn v. Auld, 1 Cranch, 321; Sanford v. Bulkley, 30 Conn. 344; Clark v. The Mayor of N. Y., 1 Keyes, 9 (1864).
7 Simmons v. Wilmott, 3 Esp. 91; Sutton v. Hawkins, 8 C. & P. 259. But see Scott v. Uxbridge, etc. Co., Law R. 1 C. P. 596 (1866).
8 Glasscott v. Day, 5 Esp. 48; Thayer v. Brackett, 12 Mass. 450; Sutton v. Hawkins. 8 C. & P. 259; Mitchell v. King, 6 Ib. 237; Strong v. Harvey, 3 Bing. 304; Foord v. Noll, 2 Dowl. (n. s.) 617; Sanford v. Bulk-ley, 30 Conn. 344. In Wood v. Hitchcock, 20 Wend. 47, a tender was made on condition of a full discharge, and Cowen, J., said: "Very likely the defendant, when he made the tender, owed the plaintiff, in the whole, more than eighty-five dollars, but has succeeded, by raising technical difficulties, in reducing the report to that sum. Independent of that, however, the tender was defective. It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books. 2 Phil. Ev. 7th ed. 133,134; Evans v. Judkins, 4 Camp. 156; Cheminant v. Thornton, 2 C. & P. 50; and Peacock v. Dickerson, in a note, Id. 51; Strong v.
Harvey, 3 Bing. 304; Mitchell v. King, 6 C. & P. 237. The tender was also bad because the defendant would not allow that he was even liable to the full amount of what he tendered. His act was within the rule which says he shall not make a protest against his liability. 2 Phil. Ev. 7th ed. 134; Simmons v. Wilmott, 3 Esp. 91. [But see cases cited in note 5, infra.] He must also avoid all counter claim, as of a set-off against part of the debt due. 2 Phil. Ev. 7th ed. 134; 1 Chit. Gen. Pr. 508; Brady v. Jones, 2 Dowl. & Ry. 305. [See Holland v. Phillips, 6 Esp. 46.] made conditionally or not is for a jury; and the fact that the ground on which the creditor founded his refusal to accept was not because of its condition is evidence of a waiver of that objection.1
"That this defendant intended to impose the terms or raise the inference that the acceptance of the money should be in full, and thus conclude the plaintiff against litigating all further or other claim, the referees were certainly entitled to say. That the defendant intended to question his liability to part of the amount tendered is equally obvious, and his object was at the same time to adjust his counter claim. It is not of the nature of a tender to make conditions, terms, or qualifications, but simply to pay the sum tendered as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender. Even demanding a receipt, 2 Phil. Ev. 7th ed. 134, or an intimation that it is expected, as by asking, ' Have you got a receipt? ' will vitiate. Ryder v. Townsend, 7 Dowl. & Ry. 119. The demand of a receipt in full would of course be inadmissible."
1 Per Lord Abinger, Hastings v. Thorley, 8 C. & P. 573; Huxham v. Smith, 2 Camp. 19.
2 Fordley's Case, 1 Leon. 68.
3 Wade's Case, 5 Rep. 114; Bevans v. Rees, 5 M. & W. 306; s. c. 7 Dowl. P. C 510; Betterbee v. Davis, 3 Camp. 70; Black v. Smith, Peake, 88; Cadman v. Lubbock, 5 Dowl. & Ry. 289; Odom v. Carter, 36 Texas, 281 (1872).
4 Saunders v. Frost, 5 Pick. 259.
5 Manning v. Lunn, 2 C. & K. 13; Gassett v. Andover, 21 Vt. 342. Scott v. Uxbridge, etc, Railway Co., Law R. 1 C. P. 596 (1866). But see Wood v. Hitchcock, 20 Wend. 47.
§ 1407. A mere offer to pay is not ordinarily sufficient, but the money must be actually produced at the time of the tender, and the tender must be to pay it over immediately.2 Yet if the creditor expressly dispense with its production, it need not be shown, although otherwise it must;3 for great importance is attached to the production of the money, as the sight of it might tempt the creditor to yield and accept it.4 The bare refusal to accept the proposed sum and a demand for more has been said to be not of itself sufficient to excuse the production of the money.5 A tender must be of money actually in hand or near by, so that it can at once be produced; and if it be distant, or if, a bank check being offered, it be not drawn, or if the offerer have not the money and must borrow it, the tender would not be good,6 although the production of the money be expressly dispensed with. Whether there were an actual or implied dispensation of the production of the money, which alone absolves the offerer, is a question for a jury to determine; but it will not be inferred by the court where the jury find the special matter, without finding any dispensation.1 The creditor has a right to demand a tender in money or in coin. But a tender of current2 bank-notes or treasury notes, or a check,3 is a sufficient tender, unless objection be made at the time by the creditor to receiving payment in them.4
1 Kichardson v. Jackson, 8 M. & W. 298; Eckstein v. Reynolds, 7 Ad. & El. 80; Saunders v. Frost, 5 Pick. 259.
2 Blight v. Ashley, 2 Pet. C. C. 24; Slingerland v. Morse, 8 Johns. 474; Breed v. Hurd, 6 Pick. 356; Brown v. Gilmore, 8 Greenl. 107; Bake-man v. Pooler, 15 Wend. 637; Harding v. Davies, 2 C. & P. 77; Finch v. Brook, 1 Scott, 70; 1 Bing. N. C. 253; Eastman v. Rapids, 21 Iowa, 590; Camp v. Simon, 34 Ala. 126; Englander v. Rogers, 41 Cal. 420 (1871); Sands v. Lyon, 18 Conn. 18.