Stowell v. Read

By chap. 208, see. 8, of the Revised Statutes, “Every person summoned as a trastee, having in his possession any money, goods, chattels, rights or credits *21of the principal defendant at the time of the service of the writ upon him, or after the service and before his disclosure, shall be adjudged a trustee therefor.” And, by see. 23, it appears that a corporation may be held by the trustee process in the same manner.

It appears that the trustee in the present suit had been made by the defendant the depositary of a sum of money in specie, which he said had been tendered by hjm to one Burnham, and which he desired might be delivered to Burnham, if he should call for it and conform to certain conditions. The representations of the defendant tending to establish in another some right to the money, which, by presumption arising from possession, would be held to be Ms own, may be taken to be true; and the question arising upon the facts represented by him is, whether the money was his or Burnham’s.

"When money is tendered in payment of a supposed debt or liability, the party to whom the tender is made may or may not, at his option, accept the money. If he accept it, he of course becomes the owner of it. If he declines it, the consequence is, that when he afterward demands it, the debtor must be ready to pay it, or else what has been done is of no avail at all. If, however, he does not demand the money, but brings an action upon the debt or obligation on which it is due, the party owing it may bring it into court and plead the facts, and so avoid the costs that would otherwise arise in the action.

The tender does not discharge the debt, for an action lies as well after the tender as before to enforce the payment of it; and the creditor can not maintain trover for the money that has been tendered and not accepted. On the contrary, the debtor may, from the moment it is refused, appropriate it to Ms own use. Indeed, the only effect of a tender is, to enable a debtor who has made it, and keeps it ready for the creditor, to escape the payment of the costs of any action that may be commenced to *22recover the debt, by showing that he has done, and is ready to do, all that is in his power to perform his contract, and that, although the debt is not paid, it is no fault of his. The tender operates only as a shield against the costs of litigation.- The money, therefore, deposited by the defendant, was his, notwithstanding it had been tendered to another and refused. The trustee must, therefore, be chai’ged.

Trustee charged.