
    Richmond.
    Shumaker v. Nichols.
    1850. January Term.
    
    (Absent Daniel,
      
       J.)
    1. A tender of money in payment of a judgment, will not authorize the quashing an execution issued thereon, unless the tender is followed by the payment of the money into Court, and a motion to enter satisfaction on the record.
    2. A tender of money in payment of a judgment, will not authorize a Court of equity to stop the execution, where there is neither allegation or proof that the defendant in the execution kept the money on hand for the discharge of the judgment.
    3. Quíeiie : If a Court of equity will interfere to arrest an execution on a judgment at law, on the ground that the money had been tendered before execution issued.
    In 1841. Lindsay Shumaker recovered a judgment against Abel B. Nichols in the Circuit court of Bedford county, for 828 dollars 84 cents, with interest thereon from the 7th day of October 1841 till paid, and his costs. A few days after the judgment was rendered, Nichols, by his agent, tendered to Shumaker the sum of 957 dollars 39 cents, which was the amount, principal, interest and costs, of the judgment, in discharge thereof. The tender was made in bank notes, and no objection was made to it on that account; but Shumaker declined to receive it, and told the agent that he wished the money to be applied to an injunction he had obtained against Nichols; and that, he had instructed his counsel as to the disposition he wished made of the money. The subject of the injunction referred to, seems to have been three judgments, two of them recovered by Nichols & Bell against Shumaker, and the third was recovered by Edwin J. Bell, and all of which Shumaker insisted belonged to Abel B. Nichols.
    
    
      The agent of Nichols did not apply to the counsel of Shumaker, but returned the money to Nichols.
    
    In August 1844, Shumaker sued out an execution on his judgment, and directly it went into the hands of the sheriff, Nichols paid him the sum he had previously tendered to Shumaker, and then applied to the Circuit court of Bedford for an injunction to enjoin proceedings upon the judgment and execution to recover any further sum. The bill charged the tender as before stated, but did not state that he kept the money ready to be paid. The injunction was granted.
    When the cause came on to be heard, the Court perpetuated the injunction to the judgment, except as to the sum of 957 dollars 39 cents, with costs; and thereupon Shumaker applied to this Court for an appeal, which was allowed.
    
      Garland, for the appellant, and Patton, for the appellee, submitted the case.
    
      
      
         He had been counsel in the cause in the Circuit court.
    
   Baldwin, J.

delivered the opinion of the Court.

The Court, without considering whether a tender after judgment at law, of the money thereby recovered, can avail the defendant therein at law, for the purpose of vacating or quashing execution thereupon, is of opinion, that such a tender would be nugatory at law unless followed by payment of the money into Court, and a motion to enter satisfaction on the record: And the Court, without considering whether a Court of equity will take jurisdiction on the ground of a tender after judgment at law, is further of opinion, that there are no circumstances in this case appealing to equity for the exercise of such a jurisdiction, inasmuch as there is no proof or even allegation, that after the tender, the money was not used by the appellee for his own purposes, but kept on hand by him for the discharge of the judgment.

The Court is therefore of opinion, that the decree of the Circuit court is erroneous; and it is adjudged, ordered and decreed, that the same be reversed and annulled, with costs to the appellant. And this Court proceeding to render such decree as the Circuit court ought to have rendered, it is further adjudged, ordered and decreed, that the injunction which had been granted to the appellee, be dissolved and his bill dismissed, with costs.

Decree reversed, and bill dismissed.  