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Page:United States Reports, Volume 2.djvu/197

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 Conair or Pmyylwnie. fyi

tondirion was, that the obligor lhould, on or before the rit ,79; january, 1789, render to the obligee a true account of, and ;;»,.p`y pay over, all monies received by virtue of the power. 0n the r7th Nvmehr, r7gr, the bond wasamgned by Pu! Sbereim, to [Brabant Slerrdine, who brought the prefent fuit, in his orwn name, and the idire wasjoined on the pleaof performance of covenants. It appeared, thatthe defendant had received a eer- tain number of Guilders, but they were one third lefs in value than Gersun Guilders; and that he hail olleredmopay the moneyto the plaintiifin the coin in which he had receiv- ed it. lt was contended by M. Lay, for thedefendant, that there was in this cafe a fullicient tender and refufal: 3 Tm:. Rep. gg.; ; and this being a bond for the performance of conditions, is not within the provilion of the a£t of Alcmbly, enabling af- figneeatofue in their own names; which fpeaks only of fuits •nbonds•• forfuch fum of mon as is therein mentioned ;" fo that the plaintiff mnil: be rronilyuit. 1 Vol. Dall. Edit. 2 Ld. Ray. 1271. r Ld. Ray. 1361. _ , But Serjmu anfwered, that, in the rirrtgplaee, there could be no non~fuit after plea of payment, or p orrnaucc of core- rrants ; and, in the next place, that the pra&ice of Pzzmjjloania would jullify the form of aélion. As to the tender, iris a mere offer to pay; arid, at all events, it ought to have been pleaded. Br rua Courrr :-·—Whether· the aéiion is regularly brought, we are willing to referve as a point for future cnnlideration : But, on the merits, we can fee no_ ground for a verdié} in fa- vor of the defendant. A mere oE.:r to pay the money is not, in legal ilxidncfs, a tender ; and even if the tender was in itfélf fullicient, the defendant is not entitled to take advantage of it, unlefs he pleads it, and brings the money into Court: For; a verdiét now given in his favor on the prcicnt pleadings, would . forever difcharge him from the plaintifs demand. ` Little has been faid on the feore of intereil. That, however, depends upon the time of the defemlant’s receiving it before, or after, the tit of january, 1739, when he was bound to reu- der his account. . Verdiét for the plaintiff. Grw¤e’s Executors, ·u:r_/iu Gnunn’s Executors. THIS caufe being referred in the Common Pleas, the re- ferrees made report into oiiice ; and afterwards the plain- till` l'¢m0V¢¢l tll¢ Ctufe by crrtirrari imc this Court. ` · 1 Bat,