C. XXIII. s. 7. (Mode of). Tender in coin. Silver up to 40s. Tender in England notes Tender in country notes, or cheque. Effect of creditor not tender. The common law requires that a tender shall be made in the current coin of the realm; or in foreign money legally made current by proclamation (k); and by the Coinage Act, 1870, 33 & 34 Vict. c. 10, a tender of money in coins issued by the Mint and not called in by proclamation or of less than the current weight is a legal tender, in the case of gold up to any amount, but in the case of silver up to forty shillings only, and in the case of bronze coins up to one shilling only. By the Bank of England Act, 1833, 3 & 4 Will. 4, c. 98, s. 6, "a tender of a note or notes of the Governor and Company 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, and shall be taken to be valid as a tender to such amount, for all sums above five pounds, 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." But even at common law, a tender in Bank of England notes (1), or in provincial or country banker's notes (m), or by a draft or cheque on a banker (n), is valid, if the creditor do not, at the time, object to receive such notes or cheque as payment, on account of their quality, but object to the amount only. The creditor's conduct at the time of the tender may, in any case, objecting to deprive him of the right to object thereto. Thus if, at the time the tender is made, the creditor objects to it simply on the ground of the insufficiency of the amount tendered, he cannot afterwards object to it on account of anything in the mere form of the tender (0). Effect of a prior or subsequent demand. (g) Effect of Prior or Subsequent Demand. The principle of the defence of tender is, that the defendant has always been ready to perform, entirely, the contract on which the action is founded; and that he did perform it, as far as he was able, by tendering the requisite money, the plaintiff himself having precluded a complete performance, by refusing to accept it (p); and therefore, if the plaintiff can show, that an entire performance of the contract was demanded and refused, at any time when, by the terms of it, he had a right to make such a demand, he will avoid the plea, whether such demand and refusal took place before or after the tender. And a subsequent application to, and refusal by one of two joint C. XXIII. s. 7. debtors, is sufficient for this purpose (q). Tender (Effect of prior or subsequent). Nor is it in all cases necessary, that such demand and refusal should have been of the precise sum tendered. Thus, if a sum of money be due on an entire contract, and the creditor demand the When the demand may be whole sum originally due thereon, and payment thereof be refused; of more than a subsequent tender of part thereof is bad, notwithstanding that, by was tendered. part payment or otherwise, the debt may have been reduced, in the interim, to the sum tendered (r). But if the amount demanded were made up of the sum due under the contract on which the action is brought, and of some other debt due from the defendant to the plaintiff, the fact of there having been a demand and refusal of such larger sum, will not invalidate a tender of the sum actually due on such contract (s). This latter principle, however, would seem to apply only where the larger sum is demanded generally; for if it were explained to the defendant, at the time, how the amount demanded was made up, the transaction would then amount to a simultaneous demand of the several debts, so as to negative the averment of readiness as to each (t). A demand and refusal will not defeat a tender, unless such By whom the demand must demand be made by some person who has authority to receive the be made. money for the creditor, and give the debtor a discharge. Thus, although a demand by the plaintiff's solicitor may be sufficient, yet a demand by the solicitor's clerk is not (u). Nor can the creditor, Not by letter. after a tender has been made, defeat its effect, by a subsequent application for the money by letter; but a personal demand should be made on the debtor, to give him, at the time of the demand, an opportunity of paying the debt (x). SECT. 8.-The Statutes of Limitation. (a) In General. at common The period within which an action may be brought is regulated No limitation entirely by statute, the mere lapse of time not being, at common law. law, pleadable in bar thereof. (q) Peirse v. Bowles (1816), 1 Stark. 323; 18 R. R. 775. (r) Dixon v. Clark (1848), 5 C. B. 365; Searles v. Sadgrave (1855), 5 E. & B. 639; Cotton v. Godwin (1840), 7 M. & W. 147. (s) Brandon v. Newington (1842), 3 Q. B. 915; Hesketh v. Fawcett (1843), 11 M. & W. 356; Dixon v. Clark (1848), C.C. 5 C. B. 365, overruling Tyler v. Bland (t) Dixon v. Clark (1848), 5 C. B. (u) Coles v. Bell (1808), 1 Camp. 478, n.; 10 R. R. 731, n. (x) Per Abbott, C. J., Edwards v. Yates (1826), Ry. & M. 360. X X C. XXIII. s. 8. The reasons on which limitations of actions, in general, are Statutes of founded, are thus stated by Pothier (y) :— Limitation (in general). Principles on which limitation founded. Statute of Six years' Its effect. Lien not extinguished. To what actions it applies. "The prescription is founded, first, upon a presumption of a payment, or release, arising from length of time; as it is not common for a creditor to wait so long, without enforcing payment of what is due; and,-as presumptions are founded upon the ordinary course of things, ex eo quod plerumque fit,—the laws have formed the presumption that the debt was acquitted or released. Besides, a debtor ought not to be obliged to take care for ever of the acquittances which prove a demand to be satisfied; and it is proper to limit a time, beyond which he shall not be under the necessity of producing them. Secondly, it is also established as a punishment for the negligence of the creditor. The law having allowed him a time to institute his action, the claim ought not to be received when he has suffered that time to elapse." The Limitation Act, 1633, 21 Jac. 1, c. 16, s. 3, enacts, "that all actions of account (z), and upon the case, and all actions of debt grounded upon any lending or contract, without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued, within six years next after the cause of such action or suit, and not after." The ordinary action for unliquidated damages for breach of contract is an action on the case within this enactment. But this statute does not discharge or extinguish the debt, it only bars the remedy (a); and, accordingly, it is held, that a lien in respect of the debt is not destroyed, though the remedy by action, to recover the debt itself, may be gone (b). Upon the same ground it is that, as we shall see presently, the demand may be revived by the debtor's subsequent promise or acknowledgment, without any new consideration. The statute of James applies to all actions upon written or verbal contracts, for the recovery of debts or damages, whether the claim be made at law or in equity (c). So it applies to an action of debt for a penalty, due under a bye-law made by virtue of a charter (d). (y) On Obl., by Evans, vol. i. 451, and see per Abbott, C. J., Battley v. Faulkner (1820), 3 B. & Al. 288, 292; per Bayley, J., id. 293; and see Cur., Rhodes v. Smethurst (1840), 6 M. & W. 351, 356, Ex. Ch. (z) An exception for "accounts concerning the trade of merchandize between merchant and merchant, their factors and servants," is abolished by the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 9, which fixes the same six years' limit for such actions. (a) Per Cur., Higgins v. Scott (1831), 2 B. & Ad. 413, 414. (b) Per Lord Eldon, C. J., Spears v. Hartley (1800), 3 Esp. 81, 82; 6 R. R. 814. (d) Tobacco-pipe Makers v. Loder (1851), 16 Q. B. 765. Statutes of Limitation And if an action be brought in one of our Courts, for a debt which C. XXIII. s. 8. was incurred and accrued due in a foreign country, or in Scotland; the English Statute of Limitations may be pleaded in bar of such (in general). action, although, by the law of the country in which the debt was incurred, the period of limitation may not have expired (e). with banker Money left with a banker in the ordinary way on current account, Money left is in law money lent to him, the contract being in law merely a for six years contract of loan to the banker with the superadded obligation upon unrecoverable. him to honour the customer's cheques. Therefore the effect of the Pott v. Clegg. statute is that if such money be left with the banker for six years without any payment by him of the principal or allowance of interest, the right of the customer to recover the money is barred (f). So it was held in Pott v. Clegg (ƒ), the principle of which case appears to be the same as that of a case shortly afterwards decided by the House of Lords (g). Law Amendment Act. By the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. Mercantile 97, s. 9, no claim in respect of a matter which arose more than six years before the commencement of the action or suit, shall be enforceable by action or suit, by reason only of some other matter of claim comprised in the same account, having arisen within six years next before the commencement of such action or suit." And the words, "matter of claim comprised in the same account," which occur in this section, have been construed to mean, matter of claim "which would have been comprehended in," or have formed an item in the account in question (h). So that, where a partnership had been dissolved by the death of one of the partners in 1854; and, in 1864, the executor of the deceased partner filed a bill against the surviving partner for an account; it was held that the suit was barred, although, within six years before bill filed, the defendant had received from one H. a large sum of money in respect of a debt due from him to the partnership (i). tiffs under By s. 7 of the Statute of James, "if any person or persons Case of plainthat is or shall be entitled to any such actions of accounts, or disability. actions of debts, shall be, at the time of any such cause of action given or accrued, fallen or to come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas (k), such person or persons shall be at liberty to bring the (e) Anto, p. 127. (f) Pott v. Clegg (1847), 16 M. & W. 821. (g) In Paget v. Foley (1848), 2 H. L. C. 28, where the precise point decided was that the customer would have no equity to recover the money. (h) Per Lord Westbury, Knox v. Gye (1872), L. R., 5 H. L. 656, 673. (i) Knox v. Gye (1872), L. R., 5 H. L. 656. (k) By 3 & 4 Will. 4, c. 42, s. 7, "no part of the United Kingdom of Great Britain and Ireland, nor the Islands of Limitation C. XXIII. s. 8. same actions, so as they take the same within such times as are Statutes of before limited, after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done." (in general). What cases within the exception. Disability must exist when cause of action arose. Case of several claimants. Being beyond sea or in pri son is not now a disability. Rule in the case of a foreigner. An action for unliquidated damages is within the saving clause in this section (1). If a party, who is under disability when the cause of action accrues, commences an action after the six years have elapsed, but during the continuance of the disability, the operation of the statute is barred by this section (1). So, where a married woman, being an administratrix, lent part of the assets to her husband, and took a promissory note from him and a surety for the amount; it was held, that she had six years after her husband's death within which she might sue the surety (m). And so, if a plaintiff be under disability at the time of action accruing, he may sue at any time before the period of disability expires, or within the limited time thereafter (n). But in order to bring a party within the saving clause of the 7th section, the disability must exist when the cause of action arose; and where the time has once begun to run, no subsequent disability, however involuntary, will suspend its operation (6). So, if there be several joint creditors or claimants, but all of them are not under disability when the right of action accrues, the action must be commenced within six period (p). years from that And now, by the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 10, the fact of the claimant, or of one or more of several claimants, being, at the time the cause of action or suit accrues, beyond the seas or in prison, does not entitle him or them to any time within which to commence such action or suit, beyond the period fixed for the same by the 21 Jac. 1, c. 16, s. 3. Under the statute of James, it was held, that where the plaintiff was a foreigner, he had six years for bringing his action, after his first coming to this country (q). And so where an Englishman was abroad at the time the right of action accrued, and died without returning to this country; it was said to be questionable whether, in such a case, the executors might not sue, at any time within six Man, Guernsey, Jersey, Alderney and (1) Piggott v. Rush (1836), 4 A. & E. (m) Richards v. Richards (1831), 2 B. & Ad. 447. (n) Le Veux v. Berkeley (1844), 5 Q. B. 836. (0) Per Cur., Homfray v. Scroope (1849), 13 Q. B. 509, 512; Rhodes v. Smethurst (1840), 6 M. & W. 351, 356, Ex. Ch. (p) Perry v. Jackson (1792), 4 T. R. 516. (q) Strithorst v. Graeme (1770), 3 Wils. 145; Lafond v. Ruddock (1853), 13 C. B. 813; Townsend v. Deacon (1849), 3 Exch. 706. |