1820.

REX

2.

required personally to be and appear and surrender himself to and before the major part of the commissioners in the said commission named, on the 1st day of April, in the 59th year of the reign BURRASTON: of King George the 3d, the 2d day of April in the same year, and the 27th day of April in the same year, at 12 o'clock at noon of each of the said days, at the Hop Pole Inn, in the city and county of Worcester, then and there to be examined, and to make a full disclosure and discovery of all his estate and effects, according to the directions of the several statutes made and then in force concerning bankrupts, and particularly the statute passed in the 5 Geo. 2. entitled An Act to prevent the committing of frauds by Bankrupts.'”

66

On the production of the notice it appeared that the title to the 49 Geo. 3. viz. An Act to alter and amend the Laws relating to Bankrupts," had been substituted for that of the 5 Geo. 2.; whereupon,

Campbell for the prisoner, insisted that this was a fatal variance, and

BEST, J. (after communicating with Mr. Justice Richardson) allowed the objection, and directed the prisoner to be acquitted.

An allegation of personal service of

The notice was personally served upon the bankrupt at his dwelling house, and the indictment alleged a personal service, without stating the notice

should, it

seems, be

accompanied by an averment that the bankrupt was at the time a prisoner.

1820.

REX

v.

whether the bankrupt was at the time in confinement or not. It was objected, that as the statute 5 Geo. 2. c. 1. (a) pointed out two modes of serBURRASTON. vice, viz. one at the usual place of abode of the bankrupt, and the other a personal service in the event of his being in prison, the indictment should also have alleged that the bankrupt was a prisoner at the time of the service.

BEST, J. was inclined to think the objection valid.

Russell and Ryan for the prosecution.

Taunton, Campbell and Chilton, for the prisoner.

(a) This act is repealed by the 6 Geo. 4. c. 16. but the section in question is re-enacted

by the 112th chapter of the latter statute.

where the debtor at the

time required the creditor

the balance

It appeared from the evidence in support of the to sign a retender, that the parties having met at the office of ceipt, which expressed the attorney for the defendant, the sum in question that the sum was offered to be paid, but the attorney at the tendered was time produced a receipt, which he required the plaintiff to sign, and which receipt expressed that the sum tendered was to be received as the balance of the plaintiff's demand.

Campbell, for the plaintiff, insisted that the tender was insufficient. In Shepard v. Harris, 4 Camp. 445. it was ruled by Mr. Justice Holroyd, that where a sum was offered to the plaintiff in full of his demand, and a receipt required, such an offer did not constitute a legal tender, because, if more was due, the receipt would be prima facie evidence of a renunciation of the residue. So, in a recent case, Lord C. J. Abbott decided, that a requisition that the creditor should receive the

due.

1820.

HIGHAM

v.

sum tendered in full of his demand, invalidated the tender. The question is not whether a receipt may be required for a payment, leaving open BADDELY. the creditor's right to any additional claim, but whether an offer of payment can be clogged with a condition, that it shall be accepted by the ereditor as the balance due to him.

Puller, contrà. The plaintiff, to have avoided the effect of the tender, should have objected at the time to sign the receipt. Not having done so, the case is precisely the same as if the tender had been made in bank notes, without a receipt being required. There the tender would be good, if no objection should at the time be made on that specific ground. Grigby v. Oakes, 2 Bos. and Pul. 526. Wright v. Reed, 3 T. R. 554. The plaintiff should have objected to sign the particular receipt, and have offered to give one acknowledging simply the payment of the money, and having omitted that precaution, he cannot now object to the tender.

BEST, J. I am of opinion that the tender in this case was insufficient. A condition was annexed to it which destroyed its effect. To render a tender effectual and legal, it must be unqualified and not be fettered with any condition. If the offer of payment had not been accompanied by a requisition which, if complied with, might have affected the right of the plaintiff to an ulterior demand, it would have supported the issue; but as it was accompanied by such a requisition, and one which the defendant had no right to exact, the

offer becomes conditional, and consequently does not fall within the legal definition of a tender.

The plaintiff had the verdict.

Pearson and Campbell for the plaintiff.

Puller for the defendant.

1820.

HIGHAM

v.

BADDELY.