In the decision formerly announced we expressed the opinion that the defendant should have further time for the payment permitted to him by the decree, inasmuch as he had endeavored to make it in good faith, though he had failed. The objection taken to this decision is that it proceeds upon a ground not now open to the court. We understand that the parties are agreed that the only question now presented for decision is, whether the defendant was, on the day appointed, ready to make or tender payment under the decree, and could, as then prepared have made or tendered the same but for the plaintiff's absence. The testimony before the master shows that on the appointed day the defendant, with his counsel, William Gilpin, went to a bank in Newport and presented a check for the proper amount, and that the said Gilpin requested the teller to give him the money in legal tender, meaning, as he deposes, "greenbacks," so called, or United States national bank notes, and that he believes the request was complied with. With the money so received the defendant and said Gilpin went to the house of the plaintiff, then out of the state, and tendered the money to his son Isaac, who declined to receive it, not being authorized to act for his father. The said Isaac deposes that he remarked that it seemed to him that if they wished to make a valid tender it should be gold, and that Gilpin replied that bank notes were good enough for him. The defendant did not produce the affidavit of the teller who cashed his check, and therefore it may be presumed that his affidavit if given would not be favorable to the defendant. Upon this and other evidence, not materially qualifying this, the master finds that the defendant had failed to comply with the decree, and *Page 594 it being conceded that the burden is upon the defendant to show a compliance, we are unable to say that the finding is incorrect, unless we are entitled to hold a readiness on the part of the defendant to pay in national bank notes was a readiness to make the payment required by the decree.
The counsel for the defendant maintains that such a readiness was sufficient, and refers to the acts of Congress approved February 25, 1863, and June 3, 1864, to show that national bank notes are money. Those acts empower certain associations, now known as national banks, to make their notes in a prescribed form, and "to issue and circulate the same as money," and provide that they shall be receivable at par in payment of certain dues to and from the United States, but do not make them receivable in payment for any other purpose. For any purpose not specified in the acts they are money only as the current notes of any bank of the state are money; and we cannot hold that the defendant in having them was ready to comply with the decree, unless we could so hold, if, instead of national bank notes, he had had the same amount in the notes of any solvent bank of the state.
The counsel for the defendant contends that we should be authorized so to hold, and refers to certain cases in which bank notes have been held to have the character of money. Unquestionably current bank notes are, in ordinary pecuniary transactions, given and received as money; and unquestionably, the courts, having regard to this usage or practice, are prompt to treat them as money in any matter in which they can assume that the parties have so treated or considered them. But the counsel has not referred to any case in which the court has decided that bank notes are money, or its equivalent, for purposes of payment, in the absence of anything said or done by the party to whom they were tendered as such, to prove that he had waived or that he ought to be estopped from asserting his right, to payment in specie or legal tender notes. The counsel cites the case of Governor v. Carter, 3 Hawks (N.C.), 328. In that case a sheriff sold property taken on execution for bank notes, and the court held that the sale was not a beach of official duty, he having had no notice from the parties concerned not to do so. One of the judges in his opinion said: "I do not mean to say that if the sheriff sells for bank notes without notice to sell for specie, that *Page 595 the creditor is bound to take such notes, or that the sheriff isnot liable to be sued for the money; but it cannot be considered as a malfeasance in office, or subject him to any fine or penalty, or any action where the grievance is breach of official duty." We fail to see in this any authority for the defendant's position. In Tutt's Adm'r v. Fulgham et al. 5 How. (Miss.) 621, the court held that the return of a sheriff that he had received so much money "in bills of the Mississippi Union Bank," was not a legal return, and said "the plaintiff is not bound by it, unless the plaintiff had agreed to receive that kind of money or notes in payment, and no such agreement appears." And inGwin v. Breedlove, 2 How. U.S. 29, where a United States marshal received bank notes in satisfaction of an execution, the court held that he could only pay into court gold or silver, if required by the execution creditor to do so; that he ran the risk of converting the notes into specie when he took them, and that having incurred the risk, he must bear the loss of depreciation.
If this is a case for the application of the rules relating to tender, we do not think the defendant was prepared to make the payment required of him by the decree, unless it may be presumed that the plaintiff waived a strict tender. But the plaintiff was absent, and therefore could neither say nor do anything to warrant such a presumption, and certainly the law must assume that every man means to exact his legal rights until he furnishes some evidence from which the contrary can be inferred. In the old case of Lancashire v. Killingworth, 2 Salk. 623, the rule is thus stated: "He that pleads a tender at the time and place and no one there to receive, must show at what time of the day he was there and how long he stayed; for he ought to show that he hasdone all that could be done on his part to accomplish what by hisagreement he was bound to do." In Sloan v. Petue, 16 Ill. 262, the court, though it finally placed its decision on another ground, expressed the opinion that a check payable in depreciated currency was not a good tender at a place designated when the person to receive it was not present. The court said: "There are many cases which hold that a tender in bank bills which are at par is good, if the person to whom the tender is made does not object to the tender on that account. But that is upon the principle of an implied waiver of the objection, by not relying upon it. But when a party is not present, and has no *Page 596 opportunity to urge the objection, he cannot be presumed to have waived it by his silence." We think this is a correct view of the law; except that we do not recall any case in which the waiver has been inferred from a simple refusal to accept the tender in the absence of any reason assigned or intimated for such refusal. We therefore cannot avoid the conclusion that the defendant was unprepared to make the payment required of him by the decree, if the payment stands upon the footing of an ordinary pecuniary claim or demand.
The counsel for the defendant contends that the payment does not stand on this footing; that the option accorded the defendant was not a debt, and that therefore it was not necessary for him to make or tender payment under it in specie or legal tender notes, but that he might make or tender it in anything which is recognized as money in ordinary business transactions. It is true the option given him is not, strictly speaking, a debt; it is a privilege of retaining the estate in controversy upon the payment of a certain sum of money to the plaintiff; but we know of no rule of law by which, without provision for that purpose, the payment for such a privilege may be made in a medium which would be insufficient for the payment of a debt. No case has been cited which recognizes such a distinction. Possibly the court might have provided for the payment in national bank notes if it had deemed that the more equitable provision; but the court simply provided for the payment of a sum of money, and we think, to satisfy this provision, the payment must be made in money which is recognized as such by the general law of the land, independently of any waiver express or implied, and not in notes which have the character of money by mere comity or consent, or for special purposes only by statutory enactment.
We therefore think that the exceptions to the master's report must be overruled. In stating this conclusion, which differs from that which we reached on a former hearing, we wish to remark that, on this hearing, we have confined ourselves strictly to the narrow question agreed to be the question raised by the exceptions, without any regard to the wider considerations which influenced our previous determination.
After the rendition of the last foregoing opinion, the case came again before the court upon the respondent's motion for further *Page 597 time within which to pay for the surplus land, and, if necessary for that purpose, for a recommitment to the master.