Although the production and presentation of the money is ordinarily one of the necessary elements of a lawful tender, it is one the creditor may waive, and I am satisfied that the Superior Court was right in holding this tender sufficient, and reversing the judgment of the city court.
1. The plaintiff met the defendant upon the street and said in substance: “ I am now ready to pay you the $17.85 which I owe you” — -having money in his pocket sufficient to pay the *556debt and intending to pay it. The plaintiff replied : “ There have been costs made, and you have got to settle with my attorney, Mr. Boughton.” No money was produced and presented by the defendant, but I think the right of the plaintiff to have the money produced and presented in connection with the offer to pay, was waived, and the production and presentation" dispensed with, by the unequivocal declaration that it would not be received, and must be paid to another. It is difficult to conceive of an expression more decidedly evincive of a determination not to receive the money, whether produced or not, or one more likely to prevent the production and presentation of it. It is certain that the expressions and conduct of the creditor in Sands v. Lyon, (18 Conn., 18,) which together were held a sufficient waiver, were not of a stronger character, and it was held in that case that the tender was good, - on the ground that an express refusal' to receive, or what was equivalent to it, was a waiver of formal production. And I think if we do not hold this tender good we must repudiate an important principle recognized and followed in that case. It is true that here it is not found that the debtor put his hand in his pocket to take out the money, but that can make no difference. No act in respect to production was necessary. And the intention of the creditor to refuse the money could not have been more clearly or strongly expressed if he had added, “Tou need not take out your money, I shall not receive it.” In such case it is the intention of the creditor not to receive, intentionally and unequivocally expressed by words or conduct calculated and intended to convince the debtor that ¡oresentation is useless, which excuses the actual production or presentation of the money. In this case it is found that the money would have been produced, and the debt paid, if the declaration had not been made ; and it is clear that the plaintiff, by an express refusal to receive, intentionally prevented it, and placed himself within the rule as adopted in Sands v. Lyon.
2. And I also think that the defendant was not bound to tender any cost. A writ had been procured and issued and served upon a garnishee, but not upon the defendant. It *557does not appear that the defendant had any knowledge of such service, but that is immaterial. The expression “ there have been costs made” does not import necessarily anything more than that a writ had been purchased and issued, and so far as I know it has always been understood to be law in this state that a debtor might tender the debt without cost after a writ was issued and delivered to the sheriff, and at any time before the actual commencement of the action ly service upon the defendant. To that effect are whatever of decisions or dicta we have upon the subject. - It is true that we have no decision directly to the point that costs made by an officer in making an attachment, whether of real or personal property, or of a debt in the hands of a garnishee, need not be tendered where no service has been made upon the defendant, but we have a decision of this court (Holdridge v. Wells, 4 Conn., 151) that the cost of the writ need not be tendered, and I do not see how any distinction can be made between the costs incurred in making service and the costs incurred in procuring the writ. They are alike taxable expenditures, and the principle involved is as precisely applicable to one as to the other. The argument founded on the alleged injustice is for the legislature. They have not authorized the collection of costs before action pending, of any kind or in any case, and until they do I think none can be recovered or need be tendered.
The plaintiff claims that there is a distinction to be observed in a case like this, founded on the idea that the garnishee is an agent, and that notice to him is notice to the debtor. To this there are two answers: 1st, that it does not appear in this case that the garnishee was any thing more than a mere debtor, or that he was even that; 2d, that actual knowledge even that cost has been made will not subject the defendant. Such knowledge existed in the case of Holdridge v. Wells above cited. Nor will any notice but the legal notice necessary to constitute the commencement of the action. For these reasons I think there is no error in the record.
In this opinion Hinman, C. J., concurred.