Franklin County IL Archives Court.....Light, John T Knox V Daniel B 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:39 am Source: Reports Of Cases Written: 1850 John T. Knox et al., plaintiffs in error, v. Daniel B. Light et al., defendants in error. Error to Franklin. Where a plea of tender alone is interposed, but the money is not brought into court, and the defendants refuse to comply with the order of the court directing the money to be brought in, the court will either disregard the plea or strike the same from the files of the court, and enter up judgment as by default.(a) This was an action of debt, brought by defendants in error, upon a promissory note, in the Franklin Circuit Court. A plea of tender was interposed, which was disposed of as stated in the opinion of the court. A judgment was rendered for defendants in error, before Denning, Judge, at the April term, 1850. The defendants below sued out this writ of error. W. K. Parrish and Casey & Montgomery, for plaintiffs in error. R. F. Wingate, for defendant in error. Trumbull, J. This was an action of debt upon a promissory note. All the questions in the case arise out of the proceedings upon a plea of tender. The plaintiffs in the Circuit Court, after filing a replication to the plea, to which the defendants demurred, asked and obtained leave to withdraw their replication, and obtained a rule upon the defendants to pay the money into court, as alleged in their plea. The defendants refused to comply with the order, whereupon the court, disregarding the plea, entered judgment against the defendants. In all this there was no error. It is clearly within the discretion of the Circuit Court to allow the plaintiffs to withdraw their replication and enter their motion for a rule upon the defendants to pay the money into court. When they refused to comply, it would be strange indeed if they could still have the benefit of their plea of tender. To make a tender good, the party must at all times have the money ready, so that the creditor may at any moment receive it and stop the litigation. To allow a party to defeat a recovery upon the ground that he had tendered and was then ready to pay the demand against him, when at the same time he refused to pay over the money when requested, would be trifling with the rights of the creditor. The question whether the money was ready in court, as stated on the plea, was not a question of fact to be determined by the jury, but a question to be determined on inspection by the court. When the court saw that the money was not present and the defendants refused to produce it, it was manifestly right and proper for the court, either to strike the plea from the files or disregard it altogether. Judgment affirmed at the cost of the plaintiffs in error. Judgment affirmed. -------------------- (a) A tender must be kept good, otherwise all benefit from it is lost to the debtor: Stow v. Russell, 36 Ill., 18 (annotated edition) and note. In chancery practice, it is not rquired that a tender be kept good by bringing the money into court: Supervisors v. Hennebery, 41 Ill., 179; Webster v. French, 11 Ill., 275. See Anderson v. White, 27 Ill., 57; Snyder v. Spaulding, 57 Ill., 480; Hopkins v. Snedaker, 71 Ill., 449. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/franklin/court/light26gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 4.1 Kb