Rose v. Brown

The rejoinder of the. defendants in the action was insufficient:

1. Because, it did not appear from their plea in bar, that •the tender relied upon was in fact made; but only that it had been pleaded, and demurred to, in a former suit upon the same note; the judgment in which suit was afterwards re*295versed, and tlie reversal removed all effect of the pleadings therein; so that though the record remained, it was not evidence of the truth of the facts therein averred or admitted.

2. Because, admitting the defendant’s plea in bar good, both as to the manner and matter of it, yet the benefit, of the tender was lost, by the subsequent demand and refusal. It was not a sufficient reason for the refusal, that the money when so demanded had depreciated and ceased to be a circulating medium; nor that it was lodged with the clerk of the court in the former suit; for as the plea of tender was there decided against the defendants, the money remained theirs, and it behooved them to take care of it.

Note. — -This judgment was afterwards affirmed in the Supreme Court of Errors.