
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Macon v. Owens.
    in detinue for a slave, by the pawner against the pawnee, a tender of the money due may be given in evidence without pleading it; and the mo? ney need not be brought into court.
    This-was an action of detinue tried in Fairfield district, hefore Ramsay, J., in March, 1801. The slaves for which the action was brought, bad been pledged to the defendant for a sum of money. The plaintiff gave in evidence a tender of the money, &c. But the money was not brought jntp court at the trial, for wfyich cause^ the judge directed the jury to disregard the evidence of tender. ^n(j Upon exception to the direction of the judge on this point, a motion for a new trial, after verdict for defendant, was submitted, and argued before this court.
    In support of the motion, it was contended, that there is a clear distinction between the case of a tender in an action to recover a debt, or duty, where such debt or duty is not discharged by the tender, and a case like the present, where the tender is not put in issue by the pleadings, but is casually introduced in evidence at the trial, upon some other issue. In the first case, the general rule is, that the money or thing, pleaded to have been tendered, must be pleaded with a proferí in curia, and brought into court. If it be money, it must be brought into court, and deposited with the clerk, at the time of filing the plea, otherwise it ought not to be received. 1 Cromp. Prac. 150. 1 Sir. 638. The practice of bringing money into court, was first introduced to avoid the difficulty and hazard of pleading a tender. 1 Str. 787. Here the action was detinue, and the plea non delinel. It appeared in evidence, that the plaintiff had the general property, and the defendant a special or qualified property, by bailment, in the negroes in dispute. The point in issue, was, whether the special property, which the defendant had acquired by bailment, was determined at the time the action was brought, or not, by a tender of the money for which the property was pawned. The issue depended on this .fact, but this fact was not the matter in issue on the record, and it could not be foreseen by the plaintiff, that this question would be involved at .the trial; at least, it was not a necessary consequence, that.it would, and, therefore, he was not under any legal obligation to bring the money tendered, into court. Had he brought it in, with whom should he have deposited it ? There was nothing on the record to which the tender would apply, and which would authorise the clerk to receive it. It is laid down, that if the borrower tender money and recover the goods in trover, yet the bawnbroker may have debt for his money ; because, though the security ceases, yet the duty remains, and the money is not repaid. Cro. Jac. 243. Co. Litt. 89,209. Bull. N. P. 168. So where money is tendered to a mortgagee, it stops interest, if the money is kept ready to pay when afterwards required, otherwise not. Bac. Abr. Tender. F. 2 P. "Wms. 378. 2 Com. Rep. 570.
    Nothing cogent was urged in opposition to these arguments. It was doubted whether unless the money is brought into court, the pawnee has any remedy afterwards to recover it; and it was conséived to bo a hardship that he should lose his money, in case the fawner should afterwards be insolvent.
    Evans and Branding, for motion.- Smith, contra.
   The court took time to consider, and afterwards, in November, 1B03, granted the motion.  