
    Warren against Mains.
    ALBAN Y,
    
    Feb. 1811.
    Where A. covej3.nt300 foliare on‘whVch’zi^eo’vey anfarm°to°Jl" ed before the day, B. agreed to receive the 300 dollars in bank bilk)which. the d™ ¡“mt B. ceivethem; r?t actioi^of cov” nant against B. that the agreement to receive bank bills, was a waiver of a tender in gold or silver, and was dence^at the the'’ tenderP°at the day.
    THIS was an action of covenant. The cause was tried at the Washington circuit, in June, 1810, before Mr. Justice Van Ness. An agreement was proved, by w^ich the .plaintiff covenanted to pay to the defendant 300 .dollars, on or before the 1st of July, 1809, at , u J which time the defendant covenanted to convey to the . plamtifF a certain farm, &c. bo.ur days before the 1st of July, 1809, it was agreed between, the parties that t^le 300 dollars should be paid in bank bills. On the 1st of July the plaintiff tendered the 300 dollars in bank bills, which the defendant refused to receive, be- * cause they were not a legal tender; and no other money J being offered, the defendant refused to execute the deed . . . for the farm. The plaintiff m his declaration against the defendant for a breach of the covenant, averred a tender according to the tenor and effect of the covenant, and the defendant pleaded the general issue. At ’the trial, the defendant objected to any evidence of an agreement to receive bank bills, and the judge overruled the objection; and a verdict was found for the plaintiff, for 250 dollars.
    A motion was now made to set aside the verdict, and for a new trial.
    Skinner, for the defendant. He cited 3 Johns. Rep. 528. 3 Term Rep. 590.
    
      Z. R. Shepherd, contra.
   Per Curiam.

It was competent to the plaintiff to show, that before the day of payment, the defendant had agreed to accept bank bills, as cash, and had dispensed with the necessity of a tender in gold and silver. The tender in bank bills was, consequently, good at the day, by reason of the previous waiver. The motion to set ~x~id~ the verdict ~`uust be denied.

Motion denied.  