In what actions allowed.—A tender is of no legal value, as a general rule, as a defence to actions for unliquidated damages (Davys v . Richardson ; Deark v. Barrett). But there are a number of statutes which authorise a tender of amends, where otherwise it would not have been allowable, as in actions against PUBLIC AUTHORITIES and EXCISE and CUSTOMS officers.
Production of money.—To make a legal tender there must either be an actual offer of the money produced, or the production of it must be dispensed with by the express declaration or an equivalent act of the creditor (Thomas v . Evans). It is not sufficient for the money to be out of sight in some receptacle beyond the creditor's control (Glascott v. Day ; Huxham v. Smith), or even in the debtor's pocket, and the creditor leaves the room before it can be produced, although the debtor has announced his intention of pro ducing it (Leatherdale v. Sweepstone); or to write a letter merely stating that the writer "now tenders " (Powney v. Blomberg). The tender of a larger sum than that claimed, together with a request for change, is not a good tender ; but it would be if it was intended that the creditor should receive the larger sum (Robinson v. Jones ; Dean v. James). And so it is not a good tender of a fractional sum for the debtor to offer the creditor a bank-note to a larger amount, and to desire him to take out of that the sum to be paid (Betterbee v. Davis). But if the creditor insists on more being due, it is not necessary to produce the money tendered (Black v. Smith ; Dickinson v. Shee). It has been held in Akxander v. Brown that where a person offers a sum of money, by way of tender, and states the precise sum he so offers, which he holds in his hand, it is a sufficient tender, although it is twisted up in bank notes and not shown to the party.
Production can, of course, be waived or dispensed with by the creditor. He may create the waiver expressly as by saying to the debtor, " You need not make a tender to me, as I will not accept it" (Wallis v. Glynn); or by informing the debtor, who has offered to pay-, that it is no use and is too late, and that the debtor must see the creditor's solicitor (Danks, ex parte); or by telling the debtor, who is offering a less sum than that claimed, that it is useless to tender that less sum as it will be refused (The Norway).
Must be uncanditional.—A tender to be good must not be clogged with a condition (Jennings v. Major), so that if a creditor takes a conditional tender he is entitled to sue the debtor for the balance (Mitchell v. King ; Greenwood v. Sutcliffe). It has been held to be a condition vitiating a tender for the debtor to offer to pay the money provided the creditor gives him a stamped receipt (Laing v. Meader); but the mere accompaniment of
the tender with a request for a receipt will not invalidate It (Jones v. Arthur). Though, clearly, it is a conditional, and therefore an invalid tender, for the debtor to refuse to pay the money unless the person to whom it is tendered will give him a receipt in full of all demands (Griffith v. Hodges ; Glascott v. Day); or for the debtor, at the time of making the tender, to require the creditor to sign a receipt stating that the sum tendered is the sum due (Higham v. Baddeky). And as it renders the tender invalid to make it subject to a condition for a written discharge, so does it for the debtor to state to the creditor at the time the offer is made that the sum offered is to be accepted as a settlement, or as the whole sum or balance due, when the claim is for a larger amount (Cheminant v. Tharnton ; Strang v. Harvey ; Gordon v. Cox ; Evans v. Judkins ; Mitchell v. King ; Peacock v. Dickerson). The reason for the tender being invalid in such cases as those just mentioned is because the creditor, if he accepted it, could be said to have admitted that no more than the sum tendered was actually due to him from the debtor (Henwood v. Oliver). A statement, accompanying a tender, that " it is more than is due, but the creditor might take it all, would not invalidate the tender (Thorpe v. Burgess), nor would its acceptance by the creditor preclude him from taking legal proceedings for the recovery of the balance. In fine, a good tender cannot be made in terms which, by taking the money, would cause the other party to make an admission (Hastings v. Thorley).
Under protest.—To offer to pay, under protest, the sum claimed, is a good tender (Scott v. Uxbridge), even though the debtor reserves the right to dispute Vie amount due, provided he does not impose any conditions on the creditor (Greenwood v. Sutcliffe). The words "under protest " merely import that the debtor does not acquiesce in the demand of the creditor, and that he does not mean to preclude himself from recovering the money back again if he can (Manning v. Lunn).
Effect of tender.—Tender before action is a good defence to an action to recover a debt, but when pleading it the defendant must pay into Court the sum he alleges to have been tendered. If the defence of tender is admitted, and the plaintiff accepts the money, it is the defendant who has succeeded (Griffiths v. Ystradxfodwg). Upon admitting the tender the plaintiff should take the money out of court.