IN THE THIRD YEAR OF GEO. IV. 1822. KRAUS V. ARNOLD. Tuesday, May 7th. This was an action brought to recover the sum of Where the de 71. 12s. for goods sold and delivered. At the trial of the cause before Lord Chief Justice Dallas, at Westminster, at the Sittings after Michael fendant ordered 4. to pay the plaintiff 71. 12s. and the clerk of the plaintiff's attorney de that he was only ordered to pay 71. 12s., which sum was in the hands of B., and B. put his hand to his pocket, with a view of pulling book to pay out his pocket 71. 12s., but did not do so by the desire of 4.; but B. could not say whether sum about him, but swore that mas Term, 1821, the defendant pleaded a tender; manded 81., on and in support of his plea called a witness, who stated which 4. said, that the defendant had ordered him to pay the plaintiff the above sum; that he was applied to by the clerk to the plaintiff's attorney, for the payment of 81. who shewed him a receipt for that sum; that the witness told him his orders were to pay 77. 12s.; and that the money was in the hands of a Mr. Tinson, who kept a public house, at the door of which they were standing, and Tinson was also present; that the clerk replied, he must be paid 87., as that was the sum he was ordered to receive; that the witness then said, that 71. 12s. was in Tinson's hands, and that if the clerk thought proper to call again for it, he should be paid; that Tinson put his hand to his pocket, as if to pull out his pocket-book, when the witness desired him to stop, as the clerk demanded 8/., and he was ordered to pay 7l. 128. only. Tinson proved that he was desired by the former witness to pay the plaintiff's debt of 7/. 128.; that he was present at the conversation between the former witness and the clerk, and that he put his hand to his pocket with the view of pulling out his pocket-book to pay 7. 12s. but did not do so, at the desire of the witness, as 8/. was demanded. He could not say whether he had money enough about him to he had it in his house, at the door of which he was standHeld, that this was not a legal ing at the time: tender, as the money should have been pro duced to the attorney's clerk. 1822. KRAUS v. ARNOLD. pay 77. 12s., but that he had enough in the house to have paid that sum. His Lordship told the Jury, that to constitute a legal tender, the money must be actually produced, unless the plaintiff dispenses with the tender, by expressly saying, that the defendant need not produce the money, as he would not accept it. And he observed, that the case of Thomas v. Evans (a) was expressly in point. The jury, under his direction, found a verdict for the plaintiff; damages, one shilling, the defendant having paid the sum of 77. 12s. into Court. Liberty, however, was given to move that this verdict might be set aside, and instead thereof, a verdict entered for the latter, if the Court should be of opinion that the plea of tender was supported by the evidence at the trial. Mr. Serjeant Lens having, in the last Term, accordingly obtained a rule nisi to that effect. Mr. Serjeant Vaughan now shewed cause, and submitted, that this case had not only been most properly stated to the jury, but that Thomas v. Evans was undistinguishable from it, where Lord Ellenborough said (b), "the actual production of the money due, in monies numbered, is not necessary, if the debtor, having it ready to produce, and offering to pay it, the creditor dispenses with the production of it at the time, or does any thing which is equivalent to that. But here (observed his Lordship), on the contrary, it is expressly stated, that the clerk did not offer the 101." And Mr. Justice Bayley referred to the case of Dickinson v. (a) 10 East, 101.- -(b) Id. 102. -(c) 4 Esp. Rep. 68. Shee (c), as being confirmatory of the principle, that there must be an offer to pay, by producing the money, unless the plaintiff expressly dispense with the tender. Mr. Serjeant Lens, in support of the rule, relied on the case of Read v.Goldring (a), where a tender by the agent of the defendant, of the whole sum demanded by the plaintiff, by pulling out his pocket-book, and offering, if he would go into a neighbouring public house, to pay it; but the plaintiff said he would not take it; was held good, although the agent was only authorised by the defendant to tender a sum short of the whole sum demanded, and offered the rest at his own risk. Here although Tinson did not pull out his pocket-book, there can be no doubt but that he was ready to produce the money; and though he might not have had it about him, he expressly swore that he had enough in the house, at the door of which he was standing when the conversation took place. But the Court held, that there had been no legal tender; and that the money should have been produced, when perhaps the clerk might have been tempted to take it; and they ordered the rule to be (a) 2 Maul. and Selw. 86. Discharged. 1822. KRAUS v. ARNOLD. 1822. Thursday, May 9th. WING v. JENKINS. On a motion to MR. Serjeant Hullock, on a former day in this Term, change the venue from London to Wor- the action was brought for the having obtained a rule nisi to change the venue in this cause from London to Worcester, on the usual affidavit : Mr. Serjeant Lawes now shewed cause on an affidaseduction of the vit, which stated that the action was brought for the plaintiff's daughter, and seduction of the plaintiff's daughter; that she would that she was so be a necessary witness at the trial; and that she was then in so dangerous a state of health, that it was not expected, she would live till the next assizes, ill, it was not expected that she would live till the assizes, is an answer to the application. Mr. Serjeant Hullock in support of the rule submitted, that the action could be only fairly tried in the county where the parties resided, But the Court held the affidavit to be a sufficient answer to the application; and the rule was consequently Discharged (a). (a) See Guard v. Hodge, 10 East. 32, 1822. DARTNALL V. MARQUIS WELLESLEY. on MR. Serjeant Pell moved, that an annuity granted by the Marquis to the plaintiff, might be set aside, affidavits, which stated, that by an indenture of the 7th March, 1812, made between the defendant of the Thursday, On an applica tion to set aside an annuity, on the grounds that the consideration money did not belong to the grantee, and that part of the annuity was granted; the grantor must make an affidavit of the circumstances of the original transaction, first part, the plaintiff of the second, and certain persons therein named of the third:-the defendant (in it was retained consideration of the sum of 4,980l. paid to him by the at the time plaintiff, in Bank of England notes, by the hands of James Gibbs, his agent,) granted to the plaintiff an annuity of 8301. for the life of the defendant, payable quarterly; that the deed contained a proviso to redeem the principal, on the payment of 5,187. 10s.; and that the sum advanced was the proper money of the plaintiff. It was also sworn, that the principal sum was not advanced to the Marquis by the plaintiff, but by one Howard, with whom Gibbs was in partnership; and that it appeared, on reference to their books, that the consideration money actually belonged to Howard at the time the deed was executed; and that 10007, was retained by him. Lord Chief Justice DALLAS.-The Court can make no distinction as to persons. The defendant has assigned all his property to trustees to pay the debts due from him to his creditors. This application is made by his trustees, who are authorised to act for him, and dispute any improper claim. No affidavit, however, is made by the Marquis himself; and I am therefore of opinion, that the grounds as stated, are not of themselves sufficient to induce the Court to yield to this application. |