Bakeman vs. Pooler, 15 Wend. 637

By the' Court, Cowen, J. The proof of the tender was defective. The witness had the money in his pocket, and asked the plaintiff if he would take it, telling him the money was ready for him; but it remained in the pocket of the witness. This was not enough, unless the plaintiff dispensed with its production by some positive act or declaration. Thomas v. Evans, 10 East, 101. 3 Black. Comm. 304, note 33. Douglas v. Patrick, 3 T. R. 683.

The money was not produced; the witness told the plaintiff he then had it ready for him; but where it was—whether in his pocket, or at some other place near by—he did not inform the plaintiff. The plaintiff was not bound to say whether he would take the money or not, till it was produced. We have no evasion, except in the language of the witness. The plea is, in form, a tender and refusal. The tender is a production and manual offer of the money, and regularly it should be counted down. Dickinson v. Shee, 4 Esp. N. P. R. 68. Brady v. Jones, 2 Dowl. & Ryl. 305.

A bag for the money will do, but certainly not a pocket, or place about the person concealed from the party. The witness had every chance to make a tender. He converses with the party, and walks with him discoursing of the debt, and assuring him that the money is ready ; and finally, without presenting it, leaves him to call for it at the witness’ office, where, for aught the party knew, it had been all the time. In short, this is any thing but a legal tender and refusal. Brady v. Jones, 2 Dowl. & Ryl. 305. The party can hardly be said to have intimated that he would not receive the money.

True, he said he did not know but some costs had been made on the note. It appears from the return that the suit was brought on the plaintiff’s order about one hour after the assumed tender. The justice does not certify whether the note had been left with him before. If the note had already been left for prosecution, as was probably the case, it was very reasonable to hesitate and enquire ; and the party was entitled to a proper time to enquire, without being subjected to the penalty of a refusal.

Even had the money been produced, and he in good faith had replied, “ before I take the money, I must first satisfy myself whether a suit has been commenced; I don’t wish to hazard being put to costs by receiving payment,” the witness would have been bound to wait his enquiry ; that could not be a refusal. Suppose the plaintiff had started on his way to the justice, in order to satisfy himself of the fact, the witness would have done better to have gone with him, or awaited his return. But whether that be so or not, here is any thing but a tender and refusal. Judgment reversed.