Sec 981

The plea of tender must aver not only a past tender, but a continued readiness to perform entirely the contract on which the suit is founded. It must aver that the defendant was always ready and still is ready to pay - toujours prist, and uncore prist. If the plaintiff can falsify the' averment of toujours prist by showing that at any time after the maturity of the debt he demanded payment and was refused, he is entitled to succeed.1 But it is no sufficient reply to a plea of toujours prist that the plaintiff demanded a larger sura than that admitted to be due by the defendant, and that this demand was refused. That the defendant refused to pay a larger sum than was due does not show that he did not remain ready to pay that which was admitted to be due.2 - The plea will be bad in substance if it does not allege an actual tender of the money, even though it could contain a profert in curiam.3 The plea, also, must contain a profert in curiam of the money tendered, and must be pleaded in bar of damages ultra etc.*

Plea of tender must set forth constant readiness to pay.

1 Thomas V. Hayden, 19 Vt. 589.

2 Savary V. Goe, 3 Wash. C. C. 140; Aldrich V. Albee, 1 Greenl. 120; supra, sec 884-5. See Gould V. Banks, 8 Wend. 562.

3 Tracy V. Strong, 2 Conn. 659.

4 Saunders V. Frost, 5 Pick. 267; Tillon V. Britton, 4 Halst. 120.

5 M'Hard V. Whetcroft, 3 H. & McH. 85.

6 Cont. II. 642.

7 As to tender on Sunday, see infra, sec 990; supra, sec 873, 897.

Sec 982

Tender may be made as effectively to an agent duly authorized to represent the principal as it could be to the principal.5 Hence, tender to an attorney employed to bring suit, or to his clerk doing business for him, is sufficient.6 A promisee cannot by stratagem or evasion exclude a debtor from this right; and if a promisee intentionally keeps out of the way in order to avoid a tender, a tender on his nearest representative is sufficient.7 Tender may be as effectually made by an agent as it could be made by the principal,8 this being essential in all cases where the principal is not sui juris.9 When a debt is due to several joint creditors, a tender to one is sufficient;10 and so is a tender by one of several joint debtors.11 To tender by agent the same distinctions as to ratification apply as apply to other acts by agents.1

Tender may be made to or by agent of joint creditor or debtor.

1 Leake, 2d ed. 859; Dixon V. Clark,.

5 C. & B. 377; Cotton V. Godwin, 7 M.

& W. 147; Hume V. Peploe, 8 East, 168; Carr V. Miner, 92 Ill. 604; Nixon V. Bullock, 9 Yerg. 414; Miller V. Mc-Clain, 10 Yerg. 245; Lanier V. Trigg, 6 Sm. & M. 641; Besancon V. Shirley, 9 Sm. & M. 457.

2 See Dixon V. Clark, 5 C. B. 378; Thetford V. Hubbard, 22 Vt. 440.

3 French V. Watson, 2 Wils. 74.

4 Claflin V. Hawes, 8 Mass. 261; Car-ley V. Vance, 17 Mass. 389; Sheriden V. Smith, 2 Hill, N. Y. 538; Earle V. Earle, 1 Harr. 273; Crawford V. Harvey, 1 Blackf. 383.

5 Wh. on Agency, sec 207; Groodland V. Blewith, 1 Camp. 477; Kirton V. Braithwaite, 1 M. & W. 310; Moffat V. Parsons, 5 Taunt. 307; Kincaid V. Brunswick, 2 Fairf. 188; Hoyt V. Byrnes, 2 Fairf. 475; Mclniffe V. Whee-lock, 1 Gray, 600; see Renard V. Turner, 42 Ala. 117; Billiot V. Robinson, 13 La. An. 529. That tender must be made personally, see supra, sec 873.

6 Crozer V. Pilling, 4 B. & C. 28; Kirton V. Braithwaite, ut supra; Hoyt V. Byrnes, 2 Fairf. 475.

7 Southworth V. Smith, 7 Cush. 391.

8 Read V. Goldring, 2 M. & S. 86.

9 Brown V. Dysinger, 1 Rawle, 408. 10 Dawson V. Ewing, 16 S. & R. 371. 11 Douglas V. Patrick, 3 T. R. 683;.

Wallace V. Kelsall, 7 M. & W. 264; Gordan V. Ellis, 7 M. & G. 607; Brandon V. Scott, 7 E. & B. 234; see Oat-man V. Walker, 33 Me. 67.