Sec 983

To give effect to a tender of money, there must be opportunity given to the creditor to inspect it. It will be sufficient to bring it in bags or other receptacles usual for carrying money, provided the creditor can open them readily and examine their contents; though it is otherwise with boxes, so locked or fastened that they cannot be readily examined.2 The creditor may waive inspection by refusing to look at the money tendered. It is his duty, not that of the debtor, to count the money.3 But unless the money be exhibited in package or bag, if not actually spread out to the eye, a mere statement by the debtor that he has the money with him is not made a sufficient tender by the declaration of the creditor that he will not receive it.4 On the other hand, the creditor who claims a larger amount, and on this ground repels a proffered tender, when the money is exhibited though only in package, cannot afterwards except to the non-production of the money.5 But it has been held a sufficient tender where the defendant, at her own house, offered to pay the plaintiff 10l., saying she would go up-stairs and bring it, when the plaintiff said "she need not trouble herself, for he would not take it;"6 and so where the defendant said that he had the exact money in his pocket, and the creditor said "he need not give himself the trouble of offering it, for he would not take it, as the matter was in the hands of his attorney;"1 and where the defendant, without opening his hand, said that he had in it the money, and the plaintiff said he would not take it.2 - A debtor cannot be precluded from the right of tender by either the artifice3 or the prohibition of the creditor; and it is enough, therefore, if the debtor does all he can towards paying the money, leaving the responsibility of non-acceptance with the plaintiff. - "The production of the money, and the actual offer of it to the creditor, is dispensed with, if the party is ready and willing to pay it, and is about to produce it, but is prevented from so doing by a declaration that he will not or cannot receive it."4 But the mere bringing a party ready to pay the money as security is no tender unless the money be actually brought in and exhibited.5 - If the creditor refuses to receive the tender, which is left with him, but afterwards declines to return it when sent for, this is equivalent to an acceptance.6

Tender of money must give opportunity for inspection, though this may be waived.

1 Harding V. Davies, 2 C. & P. 78; Reed V. Goldring, 2 M. & S. 86.

2 Wade's case, 5 Co. Rep. 114a; Co. Lit. 208 a.

3 Isherwood V. Whitmore, 11 M. & W. 347; Leatherdale V. Sweepstone, 3 C. & P. 342; Sargent V. Graham, 5 N. H. 440; Breed V. Hurd, 6 Pick. 356; Southworth V. Smith, 7 Cush. 391; Wheeler V. Knaggs, 8 Ohio, 169; Be-haly V. Hatch, Walker (Miss.) 369.

4 Leake, 2d ed. 863; Glascott V. Day, 5 Esp. 48; Thomas V. Evans, 10 East, 101; Finch V. Brook, 1 Bing. N. C. 253; Blight V. Ashley, 2 Pet. C. C. 24; Brown V. Gilmore, 8 Greenl. 107; Fuller V. Little, 7 N. H. 535; Knight V. Abbott, 30 Vt. 577; Breed V. Hurd, 6 Pick. 356; Bakeman V. Pooler, 15 Wend. 637; Strong V. Blake, 46 Barb. 227; Wheeler V. Knaggs, 8 Ohio, 169; Englander V. Rogers, 41 Cal. 420.

5 Bayley, J., Polglass V. Oliver, 2 C. & J. 15. See Ashburn V. Poulter, 35 Conn. 553; Brewer V. Fleming, 51 Penn. St. 102; Rudolph V. Wagner, 36 Ala. 698.

6 Harding V. Davies, 2 C. & P. 77. See comments in Benj. on Sales, 3d Am. ed. sec 714; Sargent V. Graham, 5 N. H. 440; Breed V. Hurd, 6 Pick. 356.