To enable the plaintiff to maintain her action, no tender of the spurious stones was necessary. They came to her possession by tbe defendant’s consent, and she was under no obligation to return them until they were demanded. Tbe delivery of tbe false stones was, in substance, a refusal to deliver tbe genuine ones. But to avoid further controversy, the plaintiff may deposit them with tbe clerk for delivery to the defendant when she calls for them. When this deposit is made, there will' be

Judgment for the plaintiff ..