
    Strafford,
    June, 1894.
    Ham v. Sanborn.
    If upon the owner’s demand for diamonds, false stones are delivered to him, he need not return them before bringing trover.
    Trover. Pacts found by the court. The plaintiff gave the defendant a set of diamond ear-drops upon a certain condition which the defendant did not perform. Subsequently, and upon the plaintiff’s demand, the defendant returned to her the gold settings of the drops with comparatively valueless stones substituted for the diamonds. These stones have since remained in the plaintiff's possession without tender to the defendant up to the time of the trial, when they were tendered to her and she declined to receive them. The defendant moved for a nonsuit because the tender was not made before the commencement of the suit. If the action can be maintained, the plaintiff is to have judgment; otherwise a nonsuit is to be entered.
    
      
      'Arthur Gf. Whittemore, for the plaintiff.
    
      James A. JEdgerly, for the defendant.
   Wallace, J.

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 ..

Blodgett, J., did not sit: tbe others concurred.  