An injunction was awarded agreeably to the prayer of the bill; and George Alston and William Littlejohn, the surviving partners of Young, Miller Co. put in their answers, and admitted that Robert Bell was the agent of the firm, denied any *Page 145 knowledge of the tender charged in the bill, and contended that if any such tender were made, it was at a time when the paper money had greatly depreciated, and that Complainants ought to have availed themselves of the plea of tender in (188) the trial at law.
Upon the hearing of the cause, an issue was submitted to the Jury. Whether Samuel Jeter did tender to Robert Bell, agent of the firm of Young, Miller Co., the sum actually due on the said bond, or offered to pay the same; and if so, at what time? The Jury found that Samuel Jeter did make such a tender, and made it before any depreciation of the paper currency took place. It was referred to this Court to say what decree should be made in the case. A plea of tender can be supported at law only by the Defendant's bringing into Court the money he admits to be due; and this is required, that the Plaintiff may have the immediate benefit of the sum so paid in. But the reason of the rule altogether fails, when money has so notoriously depreciated as to have become of no value. Is it probable that the Plaintiff would, in such a case, take the money out of Court? Or is it reasonable that a debtor should be required to preserve it through a long period of such civil convulsion as that which occurred after the tender was made? This, the finding of the Jury has fixed at a period anterior to any depreciation, and therefore the loss ought not to fall on the complainants. The Court is clearly of opinion, that the Complainants are entitled to a deduction of the interest from the time the tender was made until a demand for payment was made, of which an account was to be taken by the Master.
Cited: Tate v. Smith, 70 N.C. 687. (189)