#### Jeter and Jeter v. Littlejohn’s Executors.

1 > From Granville. J

A bond was given before the revolutionary war for a certain sum, proclamation money. During the war, a tender of the debt was made ia paper money, but before the paper money depreciated. In 1798, application was made for payment, suit was instituted and judgment recovered. The 'Defendants at law filed their bill in Equity, to be relieved from the payment of interest, from the time of the tender to the time application was made for payment in 1798, and charging in their bill that they knew not where the bond was, until this application for payment was made.

Complainants are entitled to be relieved against the interest, from tho time of the tender to the demand for payment: for at the time the tender was made, paper money was a legal tender, and it had not depreciated.

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.

Complainants prayed in their bill to be relieved against the payment of interest upon a bond given before the revo*187lutionary wax', and on which a tender had been made in paper money before its depi*eciation. The bill charged, that Samuel Jeter, the father of Complainants, some time before the revolutionary war, executed to Young, Miller, & Co. his wi’iting obligatory, for the sum of 259Z. proclamation money, with a condition underwritten, that said writing should be void on his the said Samuel’s paying on or before a particular day therein mentioned 129k 6s. like money. That the said Samuel in 1777 or 1778, after the bond became due, tendered the sum due on said bond to-Robert Bell, the known agent of the firm of Young, Miller, & Co. and who then had the bond in his possession : that the tender was made in paper money, then the currency of the State, and not depreciated j that Bell refused to receive the money so tendered: and most of the partners of the finn being British merchants, shortly afterwards withdrew from the State, in consequence of the. hostilities then existing, and remained abroad until the close of the war: that the said bond was taken away by them, or loft here in a place unknown to the said Samuel. That Samuel Jeter died about the year 1796: that no application was made to him for payment, after the tender made by him in 1777 or 1778. That in 1798, application was made to Complainants for payment, and they were sued as executors ds son tort, of the said Samuel, and judgment obtained in Hillsborough Superior Court at October Term, 1801. The bill prayed, that the Plaintiffs at law might be enjoined from enforcing payment of interest upon the sum mentioned in the condition of the bond, from the time of the tender to the time application was made to Complainants for payment, in 1798.

An Injunction was awarded agreeably to the prayer of the hill; 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 knowledge of the tender charged in the bill, and contended, that if any such tender were made. *188Jt was at a time when the paper money had greatly depre-dated, and that Complainants ought to have availed thcm-selves of the plea of tender ip 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 offer 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.

By the Court.

A plea of tender can be supported at law only by the Defendant’s bringing into Court the money he admits to he 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.