The opinion of the Court, Tenney J. having been employed in holding the jury Term in the County of Washington at the time of the argument, and taking no part in the decision of this or of the next case, was drawn up by
Whitman C. J.— The trustee in this case claims to be discharged because, at the time of the service of the writ upon *183him, he had not, as ho contends, any goods, effects or credits entrusted to or deposited with him belonging to the debtor. But in whose possession or under whose dominion and control was the money tendered to, and left with him, in his office, on his table, and in his sight, after Mr. Abbot left his, the trustee’s office, as stated in the disclosure ? It had been ordered by the Court, in pursuance of a provision in the statute, that it should be paid to him, he being the attorney of record of the debtor in the suit, in which the order was passed. At whose risk was the money after being so tendered, and left with the trustee ? Would Bishop & al., Mr. Abbot’s clients, be thereafter answerable for it ? Bid not the tender, and leaving of the money with Mr. Williams, the trustee and attorney of the defendant,, operate as a complete discharge of Bishop & al. ? Could the trustee, as such attorney, refuse to take care of it for his client ? If he had allowed it to be lost, or had thrown it after Mr. Abbot, would he not, if the latter had refused to take charge of it, have been accountable for it to his principal ? Was not the tender a lawful one ? And if a lawful tender be made, and the money tendered be left with the person to whom tendered, or under his control, is not the person making the tender, thereby absolved from any after claim for the same ? The person tendering may, if he will, if the tender of money be refused, take it away, and keep it till demanded of him. But is he obliged to do so ? The trustee, however, in this case did finally take charge of the money. No objection was ever made that it was in bank bills. But the trustee says, that he protested against receiving the amount tendered, and disclaimed all authority to receive it; and that the process in this case was served upon him, after Mr. Abbot had left his office, and before he had taken the bills into his hands and possession. But in whose custody, and under whose control were they at that moment ? Certainly not in Mr. Abbot’s or his client’s. The money was where the Court had ordered that it should be. Finally, the taking of the money at last into his hands, if such an act were essential for the purpose, must be regarded as a waiver of the former *184protestation and disclaimer of authority to accept the tender". It was an admission of the rightfulness of it and an abandonment of the ground upon which it was at first refused. The judgment, therefore, in the Court below must be reversed, and the trustee must be adjudged to be chargeable.