case lancashire against Killingworth tender must be allege the last convenient  time of the day S c salk S c salk S c ld ray S c comy Rep the defendant  covenant with the plaintiff that upon two day notice within a year to be give  at hudson bay house he will accept of one thousand pound stock in such a  company and will pay two thousand pound at the transfer thereof the  declaration aver that within the year videlicet such a day he leave notice in  write for king the defendant to come to hudson bay house the four of November  which be also within the year to accept the transfer that the plaintiff be  there on the same day ready and do tender a transfer of the say stock to the  defendant but that the defendant do not come and accept it or pay the two  thousand pound upon this declaration there be a demurrer the question be  whether upon this declaration the plaintiff ought to have judgement for the  defendant not accept the stock or pay the money and holt chief justice who  deliver the opinion of the court argue thus it do appear that the money be to  be pay upon transfer of the stock and it be to be admit that when the money be  to be pay upon the transfer of the modern report stock or do any other thing  if he that be to make the transfer or do such other thing make tender and the  other refuse then he be as much entitle to the money as if the transfer or  other thing have be actual do for though the word be that the money shall be  pay upon the transfer yet if the party do all that lie in he be be thereupon  as much entitle to the money as if he have do all effectual but the question  will be whether there be a sufficient tender here and we all hold that there  be not but that it be defective and therefore the plaintiff can recover he  aver that he be ready and do at the time and place appoint offer to make a  transfer but the defendant do not accept it and in this be the fault of his  declaration suppose the defendant have be there and he have tender it to he  and the other refuse he ought to have aver the tender and refusal and in that  case to aver a tender without aver a refusal likewise will not do et Edward  that plead of tender with omission of refusal be not good and so be many new  book side action upon a promise that the defendant in consideration that the  plaintiff will pay he a certain sum of money promise to assign he a term and  the plaintiff aver a tender of the money but that the defendant do not assign  and after verdict it be move in arrest of judgement that the plaintiff do not  entitle himself to a action for that be do not aver a refusal though he have  aver a tender but it be there adjudge well after verdict but also hold that it  will he have on demurrer and upon this diversity be the case in sand which I  remember very well in this court it be a agreement by one to build a house and  for that the other be to pay he so much money upon building of the house and  this averment be of a tender to build the house but not that the other have  refuse to suffer he to build it and all the court be of opinion a grant v Lord  sondes black Rep Brewster v capper black Rep will modern report er p that the  tender without averment of a refusal be not good but be after verdict it be  hold well vent Buckley v Milierd then there be another way of plead a tender  if time and place be appoint for the do of the act if the party that be to do  it come and he to who it be to be do do not come there he ought in his  declaration to allege that he be at the time and place and tender but no body  come to receive Yel and if the party to modern report who the thing be to be  do be absent there be this further considerable in aver a tender that be the  time of day to make the tender if there be time and place appoint the party  can come at any time of the day to make a tender but in such case the law have  appoint the last time of the day on which the thing can be convenient do for  the tender to be make for it can be in the morning nor at any time of the day  but the last time on which it may convenient be do and the party must stay  till then   wade case Cr exception be take to a pleader of a tender on a day  certain because it be not say at what time of the day it be make for he may  have come and make tender at a time not fit or appoint by law in the same day  holt if he have aver a refusal to accept such refusal will be good evidence of  a tender to his person and that will have be good at any time of the day and  aver of such tender and refusal on the plaintiff side will have be will  without tell on what time of the day the tender have be because the aver a  refusal imply the defendant be present who ought to accept it but if the party  be not present it ought to be show that he do not come and that you be there  and make tender on the time of the day on which the law appoint it to be do  and that be the last time of the day on which it may be do convenient it be  heretofore question whether it shall not be allege that neither the party  himself or any body for he be at the place to receive because if any body else  have be there for he it have be as well as if he himself have be there and  therefore ancient precedent be that neither be nor any body for he be there  but a tender be plead and that he be not there ready to receive it be hold  good without say that no body else be there for he Cr Cr Yelv for if any body  have be there on his behalf that ought to come of his side and it shall not be  intend if they do not show it and what be the reason of this this be it when a  man have covenant old woman agree to do a thing in excuse of himself for not  do thereof accord to agreement he ought to show that he have do his utmost  endeavour to perform it and show how it come to pass that he do not or can not  do it and here be a agreement by the plaintiff to transfer his stock and  hereupon the money be to be pay the plaintiff indeed say be tender the  transfer modern report and so show he do whatever he can do towards the  performance of his agreement but that be not enough for he ought likewise to  show how it come to pass that it be not perform as that the defendant be there  and refuse to accept or be not there at all or on the last convenient time of  the day which the law appoint for do the matter and all this the plaintiff  ought to show to entitle himself to this action upon this reason of law be the  case in   one make a feoff upon condition that the feoff shall reinfeoff the  feoff or one bind himself in a bind to feoff obligee by such a day and before  the day the feoff or obligor be seize by he that be to be feoff and then the  bind be put in suit it be not a good plea to say that you be always ready to  feoff he but that be himself before the day oust you but you must proceed far  and say that he keep you out of the possession till after the day with force  for though he have interrupt you perhaps you may have come upon the land  afterward and perform the agreement or make a tender which if he refuse will  have be tantamount for you ought not only to show a disturbance by he but also  such continuance of that disturbance as make it impossible for you to perform  on your side and in that case he ought to show that be come to endeavour to  make a feoff but can not do it by reason of the force be meet with from the  plaintiff and that have be a good excuse for if be to who a thing be to be do  binder the other that be to do it ever so much yet the other must use his  utmost endeavour on his side to perform and show that he have its his bind or  break his agreement Cr be a very modern report er p remarkable case the  condition of a bind be that before such a day the obligor will procure such a  woman to marry the obligee the obligee go to her and tell her how barbarous he  will use her if she marry he and call her whore and threaten to tie her to a  post and tell her such thing that no woman in her sense will marry such a man  after the day debt be bring upon the bind and this matter special plead in bar  and adjudge to be no good plea but that notwithstanding the menace the obligor  ought to have show that he have do his utmost endeavour to procure her to  marry he but that she by reason of the menace refuse and so he be hinder by  the plaintiff modern report hob a award to enter into a bind to another it be  not enough for the party to bring a bind write and to say I will seal and  deliver you this bind but be must bring the write with a seal clap upon it and  say I deliver you this as my act and deed and if be omit the do of any one  thing that be essential necessary to the execute a deed he have not perform  the award there be one thing of what I have say may be liable to exception  especial in a case of transfer a company be stock which be mention in the case  of shall v Seignoret this transfer be to have be make in the book of the  hudsonsbay company and they have set hour on which their book be open and to  say that he be there to make transfer and tender it at a time which be the  last convenient time of the day may be in vain because by the usage of the  company the book be not then open and therefore no transfer can be mind a  tender when no transfer can be will be void answ if the agreement leaves it  indefinite at such a day the law know no other time but the last convenient  time of that day but if a usage be aver that the time for transfer be between  such au hour and such a hour there it ought to be avert that he come within  the ultimate convenient time by the usage and that will be well as if the  usage be that the book be open till six oclock only the proper time to come  will be about five and to stay till six and judgement for defendant per tolan  curium