Sheredine versus Gaul

Sheredine versus Gaul. THIS was an action of debt on a bond, dated the 13th March, 1787. The bond recited that the obligee, Paul Sheredine, had given a letter of attorney to the obligor, Martin Gaul, to recover a legacy due to him in Germany ; and the condition was, that the obligor should, on or before the 1st January, 1789, render to the obligee a true account of, and pay over, all monies received by virtue of the power. On the 17th November, 1791, the bond was assigned by Paul Sheredine, to Abraham Sheredine, who brought the present suit, in his own name, and the issue was joined on the plea of performance of covenants. It appeared, that the defendant had received a certain number of Guilders, but they were one third less in value than German Guilders; and that he had offered to pay the money to the plaintiff in the coin in which he had received it. It was contended by M. Levy, for the defendant, that there was in this case a sufficient tender and refusal: 3 Term. Rep. 554 ; and this being a bond for the performance of conditions, is not within the provision of the act of Assembly, enabling assignees to sue in their own names; which speaks only of suits on bonds “ for such sum of money as is therein mentioned ;” so that the plaintiff must be non-suit. 1 Vol. Dall. Edit. 2 Ld. Ray. 1271. 1 Ld. Ray. 1362. But Serjeant answered, that, in the first place, there could be no non-suit after plea of payment, or performance of covenants ; and, in the next place, that the practice of Pennsylvania would justify the form of action. As to the tender, it is a mere offer to pay; and, at all events, it ought to have been pleaded. [MAJORITY — By the Court:] By the Court: —Whether the action is regularly brought, we are willing to reserve as a point for future consideration : But, on the merits, we can see no ground for a verdict in favor of the defendant. A mere offer to pay the money is not, in legal strictness, a tender ; and even if the tender was in itself sufficient, the defendant is not entitled to take advantage of it, unless he pleads it, and brings the money into Court: For, a verdict now given in his favor on the present pleadings, would forever discharge him from the plaintiff’s demand. Little has been said on the score of interest. That, however, depends upon the time of the defendant’s receiving it before, or after, the 1st of January, 1789, when he was bound to render his account. Verdict for the plaintiff.