Indemnity against note lost — Interest. 1. Baldwin's domicile, at the time of his decease, appears to have been in Ohio. Administration upon his estate here is ancillary to administration granted in that state, and is necessary for the collection of these notes or the foreclosure of this mortgage. If the notes were never lawfully transferred by Baldwin in his lifetime, the defendant Hartshorn can only be compelled to pay them to an administrator appointed in this state; and payment by him to an administrator appointed in Ohio would be no protection to him against a suit for their collection by an administrator appointed here. Willard v. Hammond, 21 N.H. 382; Clark v. Clement, 33 N.H. 563.
After the first note had become due and was paid, and before the others became due, Baldwin removed to Ohio, taking with him the notes and mortgage, and died without having called upon Hartshorn for payment. Whether he gave them to his daughter, Mrs. James, does *Page 481 not appear. This he could not do in fraud of his creditors. There is no evidence in the case that he sold them to any one; that his daughter, Mrs. Hyde, the first administratrix on his estate, made no effort to collect them, is evidence that they may have been transferred prior to his decease; but that no one has appeared in this state claiming to own them, or attempting to collect them, although nearly ten years have elapsed since his death, furnishes a strong presumption that they were not transferred by him in his lifetime. But, nevertheless, it is not altogether impossible that they may have been transferred, and that before they shall become barred by the statute of limitations, some one may appear and attempt their collection or the foreclosure of the mortgage. It will therefore only be just that the plaintiff should indemnify the defendant against any claim on account of these notes and mortgage by any bona fide holder. Such has generally been the practice of the courts in this state when the note or instrument, which is the foundation of the suit, has been lost; and Hill v. Barney, 18 N.H. 610, is an authority directly in point. If the person who now holds or claims to own these notes were known, he might be made a party to this suit, and, upon failure to sustain his claim to them, be compelled to surrender them up to the plaintiff. But in the absence of such a party, it would seem to be no more than reasonable that the plaintiff, before he shall be permitted to recover, should fully indemnify the defendant against any claim on account thereof by any bona fide holder. Whether the plaintiff in turn would not be entitled to indemnity from the heirs and creditors before he shall be decreed to pay to them the amount so collected upon these notes, is a question that is not now before us.
2. The defendant claims that he should not be decreed to pay interest upon these notes since their maturity, upon the ground that he has been ready and has offered to pay them, and that it was not through his fault that they were not paid; and I think the ruling of the court below in this respect was substantially correct. The case of Suffolk Bank v. Worcester Bank, 5 Pick. 106, is very much in point. The plaintiff bank presented to the defendant bank its bills, and demanded the specie, which the defendants could not pay, but on the next day tendered to the plaintiffs the requisite sum in specie, with interest at the rate of twenty-four per cent. per annum (the rate prescribed by statute in case of neglect of a bank to redeem its bills upon presentation therefor). The plaintiffs refused to accept the sum tendered, and the defendants deposited the money in a bank in Boston, for the use of the plaintiffs, with notice that they might at any time draw it out. It was held that the plaintiffs could recover neither the statute penalty of twenty-four per cent. per annum after the tender, nor even simple interest. PARKER, C. J., remarked, — "The tender, though not technically good as a defence, is a legal and equitable shield against the just but severe penalty for neglecting and refusing to redeem their bills, from the time when they would have redeemed them but for the refusal of the other party to receive."' *Page 482
In 3 Starkie's Ev. 1396, it is laid down, that "although a tender of the sum due is not evidence under the general issue in assumpsit or debt, yet a tender of a sum due on a promissory note, accompanied with a demand of the note, is sufficient to stop the running of interest."
Dent v. Dunn, 3 Campb. 296, was an action brought by Dent against the executrix of Dunn on two promissory notes given by the testator in his lifetime. It appeared that after his death his executrix had given her agent a sum sufficient to take up the notes. The agent offered to pay the principal and interest on having the notes delivered to him; but they were mislaid, and so the money was not paid. The agent failed with the money in his hands. Afterwards the notes were found and the action brought. These facts were relied upon in defence of the action, but not admitted as such. A question then arose to what time interest should be made up. Lord ELLENBOROUGH said he thought interest ought to be stopped from the time of the offer to pay. Interest, he said, is a compensation agreed to be paid for the use of money forborne by the lender at the borrower's request. It is more frequently recovered in the shape of damages for money improperly detained by the debtor contrary to the request of the creditor. But in neither of these ways can it run after an offer to pay the principal, upon a reasonable condition which the party to receive refuses or is not in a situation to fulfil. A verdict was taken for the principal, and interest down to the tender. Here, it will be observed, was no legal tender. The offer to pay was after the notes had become due, and a condition was insisted on, which, however reasonable, would have rendered the offer nugatory as a tender; but yet it had its effect, because the money was not unlawfully detained, for it was the neglect of the plaintiff in regard to the notes which prevented the payment; — see, also, Zeevin v. Cowell, 2 Taunt. 203, and Roberts v. Lambert, 2 ib. 284.
In Goff v. Rehoboth, 2 Cush. 475, the plaintiff presented his account to the selectmen, who drew an order in his favor and left it with the town treasurer for $24.67, the amount which they allowed and the plaintiff was notified of it by the treasurer. The plaintiff failed to recover more than the selectmen allowed. It was held, (1) that there was no such demand for payment as would lay the foundation for a claim of interest; and (2) that the notice given by the treasurer to the plaintiff, that $24.67, being the whole amount of his bill then demanded except the contested claim on which the defendants prevailed, though not a technical tender, was such an offer as to prevent the accruing of interest by way of damages.
In Otis v. Barton, 10 N.H. 433, it was held that "if the maker of a note payable at a given time and place be then and there ready with the means of payment, such readiness will be equivalent to a tender," and that the plaintiff could recover no interest after maturity.
A tender, with a request that a deed be executed to which the party is entitled on making the tender, or with a request that the note of the party making it be given up, is not a conditional tender. Buffum v. Buffum,11 N.H. 451. *Page 483
The case before us finds that the defendant has been able, ready, and willing to pay these notes ever since they became due, with interest to the time of their maturity, having at all times either had money sufficient in possession or at ready command, and that he has repeatedly offered to pay the amount due on all the notes to Mrs. Hyde, the former administratrix, and to the plaintiff, the present administrator, upon delivery to him of the notes to be cancelled and a discharge of the mortgage, or a sufficient indemnity against any claim on account of said notes and mortgage. That the plaintiff could not surrender the notes and mortgage, if not the fault of his intestate, is the misfortune of the plaintiff, for which the defendant should not be made to suffer. Although these offers were not, strictly speaking, a lawful tender, yet I think, upon the strength of the above authorities, that they were sufficient to relieve him from the payment of interest subsequent to the appointment of Mrs. Hyde as administratrix, August 6, 1866.
The defendant has offered in his answer to pay the money, but it does not appear that he has brought it into court. Frost v. Flanders, 37 N.H. 549. The plaintiff, however, has taken no exception on this point. The case finds his readiness to pay, and he can be permitted now to bring the money into court — Buffum v. Buffum, supra, 459 — to be paid to the plaintiff upon his indemnifying the defendant against any claim on account of these notes.
CUSHING, C. J., and LADD, J., concurred.
Exceptions overruled.