Lancashire and Killingworth
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | High Court |
English Reports Citation: 91 E.R. 1357
COURTS OF KING'S BENCH AND COMMON PLEAS
lancashire vers. killingworth. Intr. Trin. 12 Will. 3, B. R. Rot. 359. S. C. 12 Mod. 529. 3 Salk. 342. Com. 116. Where an act cannot be compleated without the concurrence of the party for whom it is to be done, if the party who is to do it does as much as he can without such concurrence, he does what is equivalent to an actual performance of the act. And may insist upon any recompence he was to have upon such performance. E. ace. Dougl. 659, 665. R. cont. ante, 440. A tender cannot amount to a performance, unless it is actually rejected. S. C. Salk. 623, or unless it is to be made at a particular place and the party to whom it is to be made does not attend. S. C. Salk. 623. A man who would insist on a tender at a particular place, and a non-attendance by the party to whom it was to have been made, must shew that he was at the place the last moment the tender could properly have been made. S. C. Salk. 623. P. ace. 5 Co. 114 b. In covenant for 20001. the plaintiff declared that the defendant's testator covenanted with the plaintiff, upon two days notice to be given to him, to accept at any time (a)1 within the year, 10001. of the joint stock of the Hudson's Bay Company at the Hudson's Bay House in, fec. and upon the transfer thereof to pay to the plaintiff 20001. and the plaintiff avers, that upon the second of November 1692, he left notice in writing at the testator's house, requiring him, the fourth of November following (which was within the year) at the Hudson's Bay House to accept the 10001. stock; and that the 1358 TRIN. TERM, 13 WILL. 3 1 ID. RAYM. 687. plaintiff was ready there at the day, and offered to transfer the stock, but that the testator did not come to accept it; nor hath the said testator or the defendant paid to the plaintiff the 20001. Upon demurrer to the declaration, and argument at the Bar two or three times, the whole Court held the declaration ill, and that judgment ought to be given for the defendant. And Holt gave the reasons of it. He said, that though the 20001. were payable upon the transfer, yet if a legal tender had been made by the plaintiff, he would have been as well intitled to the 20001. as if he had made an actual transfer. But here the tender shewn in the declaration is no legal tender. [687] The plaintiff says, that he was ready at the time and place, and offered to transfer; but the defendant's testator did...
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