TENDER, in law, is an offer to pay a debt, or perform a duty. This is often pleaded in an action as a bar to the plain tiff's recovery ; and where the money de manded by the plaintiff has been tender ed or offered to him before the com mencement of the suit, and he has refus ed to accept it, the plaintiff is barred of his action and costs. In pleading a ten der, , the defendant says, the plaintiff ought. not to have his action, because, except as to so much, specifying the sum, he owes nothing to the plaintiff; and as to that sum, he has been always ready and willing to pay it, and before the commencement of the suit tendered and offered it to the plaintiff,'and that he re fused it; which slim of money he of course brings into court, to be .paid to the plaintiff; if he will accept the same ; and this bringing money into court, on a plea of tender, is done without a special motion. In all other cases, the leave of the court must be had, before money can be brought into court. The rule under which this leave is granted is, as in the case of an ejectment by a mort gage, founded upon a particular act of par liament. In other cases it is founded upon the discretionary power vested in the court. By the discretionary rule it is sometimes ordered, that upon bringing money into court all proceedings in an action shall be stayed. At other times it is ordered, that the money brought into court shall be struck out of the plain tiff's declaration, and that the plaintiff shall not, at the trial of the issue, be per mitted to give any evidence as to this money. This rule, by which the money brought into court is ordered to be struck out of the declaration, is from its being more frequently granted, than that by which it is ordered that the proceeding shall be stayed, called the common rule.
Upon a plea of tender, the defendant must not plead the general issue, or a full denial as to the whole demand, but only to that part which is an excess above the sum tendered. And the plaintiff in answer to this must either deny the ten der, or reply that there was a demand and refusal, which is a sufficient ansWer to the plea that states the defendant was always ready to pay. If bank notes have been offered, and no objection made on that account, it has been considered by the Court of King's Bench as good ten der. But to constitute a tender, there must not merely he an offer by the de fendant, that, if the plaintiff will take it, he will give him so much ; but there must be an actual offer and readiness, accompanied with apparent ability, to pay immediately, although it is nut ab solutely necessary to produce the money in tale upon the table.
It is said a bank note is no ten der, nor is it, if it is refused. But by a late statute, before any one can be ar rested, and held to bail, the plaintiff must swear that his debt has not been tendered to him in bank notes, so that it is next to a legal tender ; yet the plaintiff may sue by process, without holding to bail, and obtain judgment against the defendant, with his costs ; on which the sheriff will levy, and probably tender the amount in bank notes ; so that the plaintiff will be put off' in an endless circle, if it is worth while to incur costs; and bank notes are now a legal tender in every thing but the name, which is, in the opinion of the best writers on political economy, a cir cumstance that must depreciate their real value.