TENDER. A tender is the offer to perform some act. In practice it generally consists in an offer to pay money on behalf of a party indebted, or who has done some injury, to the creditor, or to the party injured.
A tender to the amount of 40s. may be in silver ; but beyond that amount it must be in gold, or in Bank of England notes payable to bearer on demand for any sum above 51. (3 & 4 Win. IV. c. 6.) If a tender be made of a larger amount in silver, or in country bank-notes, and no objection be taken at the time to the silver or notes, the objec tion to the tender on that ground is waived, and the tender is good to the amount to which it is made. The money must be produced and shown, or the bag or other thing which contains it shown, to the party to whom it is intended to be given, unless this is dispensed with by some declaration or act of the creditor. This is insisted upon with such strictness, that even though a party tell his creditor that he is about to pay him so much, and put his hand into his pocket to pro duce the money, yet if the creditor leave the presence of the debtor before the money is actually produced, no tender will have been made : but if the creditor refuse to receive the money mentioned on the ground that it is insufficient in amount, the actual production of it is not necessary to constitute a valid tender. The offer must be absolute and without conditions. An offer of a larger amount with a request of change; an offer with a request of a receipt, or on condition that something shall be done on the part of the creditor, are not valid tenders; but an offer of a larger sum absolutely without a demand of change is good. A tender may be made either to the party actually
entitled to receive it, or to an agent or servant authorised to receive it, or to a managing clerk ; and a tender will not be invalidated even though before it is made the creditor has put the matter into the hands of his attorney and the managing clerk of the creditor refuses to receive it, and assigns that circumstance as his reason for doing so. If the attorney write to the debtor demanding the money, a tender afterwards made to him or to his managing clerk is good, unless at the time when it is made they disclaim authority to receive the money. A tender ought to be made on behalf of the party from whom the money is due; if the agent appointed by him to make the tender offer a larger sum than he is authorised to do, the tender will nevertheless be good for the full amount to which the tender is made.
If the defendant in an action plead a tender, he must state that he has always been ready to pay the money, and he must also pay it into court, The effect of the plea is to admit the existence of a cause of action in the plaintiff. The plea goes only in bar of damages. The plaintiff, therefore, in such ease can never be nonsuited : but if issue is taken on the mere fact whether or not the tender has been made, and that fact is found for the defendant, it is a good defence to the action.
By various statutes, magistrates, officers of excise, &e., are em powered, after notice of action to be brought against them, to tender amends ; and if the amount tendered is sufficient, the tender is a defence to the action.