(o) This was settled in the case of Johnson v. Lancaster, Stra. 576. The report of that case is as follows: "It was settled on demurrer, that a tender is pleadable to a quantum meruit, and said to have been so held before in B. R. 10 W. 3; Giles v. Hart, 2 Salk. 622." In reference to this case of Giles v. Hart, the learned reporters, in a note to Dearie v. Barrett, 2 A. & E. 82, say: "In Johnson v. Lancaster this case is cited from Salkeld; and it is said to have been there decided that a tender is pleadable to a quantum meruit ; but that does not appear from the report in Salkeld, and the report in 1 Lord Raymond, 255, states a contrary doctrine to have been laid down by Holt, C. J., and is cited accordingly, in 20 Vin. Ab. tit. Tender (S), pi. 6. The point is not expressly mentioned in the reports of the same case in Carth. 413, 12 Mod. 152, Comb. 443, Holt, 556." And see Cox v. Brain, 3 Taunt. 95.

that a tender of national bank notes, in pursuance of an order of court providing for the payment of money, was not a good tender, but that a tender of United States notes would be.

land, very strongly, that no tender is admissible. In this country cases of accidental or involuntary trespass form an exception; in part by usage, or by an extension of the principle of the 21 Jas. I. c. 16, or express statutory provision. (q) This seems to be settled in some States, and would, we think, be held generally. A tender may be pleaded to an action on a covenant to pay money. (r) A plea of tender admits the contract, and so much of the declaration as the plea is applied to.1 It does not bar the debt, as a payment would, but rather establishes the liability of the defendant; for, in general, he is liable to pay the sum which he tenders whenever he is required to do so. (s) But it puts a stop

(p) Dearie v. Barrett, 2 A. & E. 82. This was an action by a landlord against a tenant, for not keeping the premises in repair, etc. The defendant moved for leave to pay £5 into court by way of compensation, 'under statute 3 & 4 Will. IV. c. 42, § 21, and also that it might be received in court under a plea of tender before action brought. Patteson, J., said: "Is there any instance of such a plea to an action for unliquidated damages?" To which White, for the defendant, answered: "A plea of tender is allowed to a count on a quantum meruit. It was so settled in Johnson v. Lancaster, 1 Stra. 576. Although the contrary was once held in Giles v. Hart, 2 Salk. 622." Lord Denman added: "It does not follow, because you may plead a tender to a count on a quantum meruit, that you may also plead it to any count for unliquidated damages." And see Green v. Shurtliff, 19 Vt. 592.

(q) New York Rev. St. vol. ii. p. 553,

§§ 20, 22; Slack v. Brown, 13 Wend. 390; Mass. Pub. St. c. 179, § 10; Tracy v. Strong, 2 Conn. 659; Brown v. Neal, 36 Me. 407.

(r) Johnson v. Clay, 7 Taunt. 486, 1 J. B. Moore, 200.

(s) Cox v. Brain, 3 Taunt. 95; Huntington v. American Bank, 6 Pick. 340; Bennett v. Francis, 2 B. & P. 550; Seaton v. Benedict, 5 Bing. 31; Jones v. Hoar, 5 Pick. 291; Bulwer v. Horne, 4 B. & Ad. 132; Stafford v. Clark, 2 Bing. 377. - The authorities and practice have not been entirely uniform as to the effect of a payment of money into court, either in actions of assumpsit or tort. In assumpsit the modern doctrine is, that payment into court, when the counts are general, and there is no special count, is an admission that the amount paid in is due in respect of some contract, but not that the defendant is liable on any particular contract upon which the plaintiff may choose to rely. Kingham v. Robins, 5 M. & W. 94 (1839); Stapleton v. Nowell, 6 M. & W. 9 (1840); Archer v. English, 1 Man. & G. 873 (1840); Charles v. Branker, 12 M. & W. 743 (1844); Edan v. Dudfield, 5 Jur.317 (1841). On the other hand, if the declaration is on a special contract, and it seems on the same principle, if there are general counts and also a special count, the payment admits the cause of action as set forth in such special count, but does not admit the amount of damages therein stated. Stoveld v. Brewin, 2 B. & Ald. 116 (1818); Guillod v. Nock, 1 Esp. 347 (1795); Wright v. Goddard, 8 A. & E. 144 (1838); Yale v. Wilan, 2 East, 134 (1801); Bulwer v. Horn, 4 B. & Ad. 132 (1832); Bennett v. Francis, 2 B. & P. 550 (1801). In Jones v. Hoar, 5 Pick. 285 (1827), there were three counts, one upon a promissory note, one for goods sold and delivered, and a third for money had and received. The defendant brought in money generally "on account of, and in satisfaction of, the plaintiff's damages in the suit." The court thought this an admission of all the contracts set forth in the declaration, but under the circumstances the defendant had leave to amend and specify that the money was intended to be paid in upon the promissory note. So in Huntington v. American bank, 6 Pick. 340 (1828), there were two counts, first, on an account annexed to the writ, for the plaintiff's services, claiming a specific sum; and, second, a count claiming a reasonable compensation for his services, and alleging their value at $1,500. The

1 The acceptance of a tender, accompanied by the expression of a wish for a more formal instrument, is sufficient to enable a court of justice to hold that a final agreement has been arrived at. Lewis v. Brass. 3 Q. B. D. 667.

* to accruing damages, or interest for delay in payment, and gives the defendant costs. (t) It need not be made by the defendant personally; if made by a third person, at his request, it is sufficient; (u) and if made by a stranger without his knowledge or request, it seems that a subsequent assent of the debtor would operate as a ratification of the agency and make the tender good.(v) Any person may make a valid tender for an idiot; and the reason of this rule has been held applicable to a tender for an infant by a relative not his guardian. (w) And if an agent, furnished with money to make a tender, at his own risk tenders more, it is good. (x) So a tender need not be made to a creditor personally; but it must be made to an * agent actually authorized to receive the money. (y)1 If the defendant paid $300 into court. The principal question was, whether the defendant by paying the money into court generally, without designating the count on which it was paid in, admitted the contract of hiring, as set out in the second count, thus leaving no question for the jury, except the value of the plaintiff's services. The court held that it did. In Spalding v. Vandercook, 2 Wend. 431 (1829), the declaration contained a count on a promissory note for 9131, and also the common money counts. The defendant paid in $89, and sought to reduce the amount of the plaintiff's demand to that sum, by showing that the consideration of the note failed. The court admitted evidence to that point, notwithstanding the plea. See Donnell v. Columbian Insurance Company, 2 Sumner, 366 (1836). In Elgar v. Watson, 1 Car. & M. 494 (1842), the action was assumpsit for use and occupation, and for money lent. Coleridge, J., held that a general payment by the defendant, acknowledged the plaintiff's right to recover something on every item in his bill of particulars, and it was for the jury to assess the amount. - In actions of tort the same general principles seem to be applied. If the declaration is special, payment into court operates as an admission of the cause of action, as set out in the declaration. Thus, in actions against railways for injuries received by the negligence of the company, or in an action against a town for a defect in the highway, payment into court admits the defendants liability as set out, and leaves the question of damages for the jury.