The items of account exhibited before -the referee, have not been brought into Court, but from Jus report, we learn there was no exhibits on the part of the defendant, nor had the plaintiff any credits on his book, so that the question for the referee to decide was, whither the statute of limitation should bar those items of account which were of more than six years standing; this question was virtually settled in the case of Hutchinson & Dunham vs. Pratt, 2. Vt. Rep. 146. The case of Cotes vs. Harris, cited in Bul. N. P. 149, was then considered as law, and must now govern in this case.
As it respects the tender, it appears that a short time *148before the commencement of the plaintiff’s suit, he sent his son to the defendant to demand of him $4,00 in payment’for the use of a horse; the defendant tendered him $3,00 for the use of the horse, and 50 cents for the keeping of sheep, both of which sums the son declined taking. A suit was then commenced before a justice, a silent judgement given, and appealed to the County Court and there ruled out to referee whose report is before us; and that the defendant made no mention of his tender before the justice, in the County Court, but relied upon it before the referee, who considered the sum legally tendered and that, although not offered in the Justice or County Court, he had a right to produce and have it allowed before him. The Court consider that the offer of the $3,50 to the son of the plaintiff under these circumstances, cannot be regarded as a legal tender; here was an unliquidated claim, and the boy had no authority from his father to' make a compromise. ,To receive the $4,00 if paid, was all he could legally do; whither the plaintjff would or would not have received the $3,50 had the same been tendered to him before the commencement of the suit, we have no means of judgeing. A tender ought always to be made under such circumstances, as that the claimant can exercise his judgement in receiving or refusing it; and because money cannot safely be counted in the night, a landlord shall not dis-train for his rent, but in the day time, Coke Lit. 142.— There is an anonymous case in Esp. N. P. Cases, where a tender was made to a servant, who carried the money into his master and brought back word that he would not receive it, and adjudged a good tender; but that case differs widely from this, it does not appear here, that the plaintiff ever heard of this tender, until he met it in the referee’s court; had this claim been a note, on which by computation the sum due could have been ascertained, and a sum equal to the amount due had been offered by the defendant, and rejected by the boy, there would have^been some reason in saying that, as he was the bearer of the note, the defendant was justified in treating him as the authorized agent of the plaintiff, to receive what was his due, and a refusal of the agent a refusal of the principal; but here, the boy had no authority but to ask for and receive the $4,00.
*149But could we overcome this objection, yet, the defendant is involved in difficulty, in not carrying his money into the justice court, ready to discharge himself if the plaintiff would receive it, and again, into the County Court. Will it be said the plaintiff should have demanded it of him ? If the tender in the first instance had been legal, his not demanding it before suit might involve a question of costs, but in no wise will it excuse the defendant for not offering to pay when called into a court of justice to show cause why he has not paid. The tender admits an indebtedness; and that he has offered to pay the amount which the plaintiff refused to receive, is the reason he offers for not having discharged that indebtedness; and that he has now deposited the same sum in the hands of his clerk, would have been one of the best reasons why the plaintiff should not further have or maintain his action against him. Harding vs. Spicer, 1 Camp. 327 & note; Giles vs. Hartis, Ld. Ray, 254; Chitty’s Forms, 431. The facts having been found by the referee, the Court direct judgement to be entered for the plaintiff to recover of the defendant $3,50 damages and his costs.