
    CHERAW DISTRICT,
    SPRING TERM,
    1793.
    Smith v. Stinson and Ellison.
    Upon a bond, with condition to deliver corn by a certain day, tender on the day prevents the accrual of interest, but does not discharge the obligation. And it seems that service of process is a sufficient demand to sustain an action by the obligor after such tender. Sed qúcere de hoc.
    On such an obligation, judgment is for the debt, payable in corn. Semble.
    íf the obligor make no objection at the time of the tender, but allege that ho had parted with the bond, he cannot afterwards object that the tender was insufficient.
    Debt oh á bond, conditioned to deliver corn on the bank of the liver Peé Dee, between Chatham and Greenville, on or before the 1st January. Tender pleaded, and issue thereon.
    It was proved by one witness, that the defendants gave notice to' the plaintiff, on the day the bond became due, that the corn -Was ready at Pledger’s Neck, (between Chatham and Greenville,) and that they were ready to deliver it; and’ that the plaintiff made no objection, but said he had parted from the bond.’ The defendants were ready at the time and place, &c.
    For the plaintiff, it was contended, that the tender was insuffi, cient. That Pledger’s Neck was not sufficiently certain and particular. That it was not proved the defendants were ready at the uttermost convenient time of the day. That the notice was not reasonable, and therefore not legal notice. That it should have preceded the time <?f payment or delivery, three or four days at least. That a tender mean's a careful offer at due time and place. r T' Per^orHz a contract, according to the true intent thereof; but '■his was not so. That the intention of the contract appears from the nature of it. The defendants were to have their election»either to deliver the corn at any convenient place on the river" bank; between Chatham and Greenville, (which places are a considerable distance apart,) or to pay the money such corn was worth. The plaintiff, however, was to have sufficient and timely notice, when and where the corn was to be delivered, that he might' be prepared to receive it. Co.-Litt, 207. a. Salk: 624. Baev Abr. Tender D.
    
      JE contra.
    
    It was insisted' the" tender was sufficient, and that the issue being found for the defendant, must operate as' a'complete bar to the plaintiff’s demand. That the demand being for the pe. naity of a bond, conditioned to perform a specific act, if the plaintiff had proved the act not done agreeably to the condition, he tvould lie-entitled to-the penalty; and therefore, the defendants having proved their compliance with the condition, the action is barred-forever, for the issue’is upon a tender of perishable articles. Bac. Abr. Tender, H. 2. Co. Litt. 207. a. 9 Rep. 79. 3 T. R. 668. 1 Esp. Rep. 349. Com. Dig. Pleader. 2 W. 28. Garth", 133. See, also, 2 Johns. 24.
    For the plaintiff, in reply, it was argued, that the issue,-if found for-the defendants, would not be a complete bar ;• for that the con-' dilion is part and parcel of the bond, viz to pay so much money-in corn : and that the legal effect of a tender is to 'stop interest from the time of the tender, till a demand is afterwards made. Salk. 624% 2 Impey’s Pract» 315.
    
      
       This doctrine savers of the apices striclijuris, 'and seems repugnant to common notions of justice. It is founded on a passage iñ Co. Lift, cited above, and 9 Rep. 79, that defendant shall npt plead uncoreprist, where it is a charge1 for the obligor to keep lona peritura. A debt or duty, may bo discharged by a tender, in cases where it depends entirely on a condition to be performed by a-tender, and is not a debt or duty precedent and independent of the condition. See ílayw. 11.142. Dyer, 24, b. Debt for twenty quarters malt. Ten, dor and refusal', hétela bad'ptea, without saying uncoreprist. And see-Dyer,3(j0.-
    
   Per cur ¿

Geimke, J.

The tender has been sufficiently proved, as the plaintiff did-not object to the want oí sufficient notice, but said he had passed away, the bond. The demand can carry no interest from the time of the tendon It has been contended that the verdict ought to be for the defendants, because no demand, since the tender, has been proved ;-but I-think the service of process in this action, must be considered as a demand. 8ed quaere de hoc. Verdict for the plaintiff, (payable in corn.)

Johnson and Peace, for plaintiff. Falconer, for defendants. 
      
       See Dyer, S3, b, note, citing 11 II. 7, 5.b, .One is to pay at 'such a day, five quarters of wheat; at the day of the contract they were worth £60, at the day of payment, £5. The judgment shall beta recover five quarters wheat, or £5. And the defendant may deliver the wheat, if he please; but the sum of money ought, of necessity, to be referred to the day: for if £30 are to be paid, they cannot be paid but as they are at the time, for money is its own measure; otherwise it is. of corn. See 3 Vern. 394. Prec, in Ch. 533. 1 P. Wms. 570. There is a dictum in Carthew, 133, that if a tender be on a bond, with a penalty, the plea ;s in bar of the action; but the reason, if it ever existed, has ceased. A demtmtj after the tender, revives the action. Bee 3 Johns. 30..
     