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The opinion of the court was delivered by •

Richahdson, C. J.

The plaintiff cannot prevail in this action, unless he has shewn a legal title to the leather which is the subject of contest, vested in himself. The question, then, to be decided is, whether upon the tender of the leather by the defendant, in pursuance of his contract, the property *324vested in the plaintiff, notwithstanding his refusal to accept it. It therefore becomes necessary to ‘ look into the nature and consequences of a tender and refusal.

In some cases the debt, or duty, is discharged by a tender and refusal, and in other cases it is not.

Thus a tender and refusal is not a discharge of a bond with a condition for the payment of money; nor of any promise to pay money ; but the duty remains, and he who pleads a tender in such cases must allege that he is still ready to pay and bring the money into court. Bacon’s Ab. ‘ Tender.’ F. — 1 Co. Lit. 207. — 9 Co. 79, Peytoe’s case.

When the debt, or duty, is not discharged by a tender and refusal, it is very clear that no title to the particular money tendered vests in him to whom the tender is made. And it was formerly held, that if the plaintiff refused the money when brought into court, and took issue upon the tender, the defendant might take the money out of court, and if the issue were found against the plaintiff, he lost the money forever(12.) Although the law is now altered in this respect, and the defendant is not allowed to take the money out of court when the plaintiff denies the tender, yet the present practice is by no means founded upon the supposition that the money vests in the plaintiff upon the tender(13.) The old doctrine was founded upon the Year Book of 21 M A, 25, where the case was this : In debt upon a bond, with a condition for the payment of 40/., on a particular day, and a like sum on divers days afterwards, the defendant pleaded payment of all the sums on the several days, except the last day. and as to that he alleged that he paid to the plaintiff on the last day 20/. and tendered 20/. more, which the plaintiff refused, and said that he had always been ready, and still was, to pay the 20/., and brought the money into court. The plaintiff refused to receive the money, and took issue on the tender. The court said that the defendant was entitled to take his money out of court, and it was delivered to him. The reporter says, “now thus the intent of the *325“ plaintiff is by this issue to cause the whole obligation to “ be forfeited ; and it seems that if this be found against him “ he shall never have the %Ql. ; for, since it is delivered- to “ the defendant again, there is no way to make him pay it. “ And also the plaintiff has made his refusal a matter of “record, and took the issue at his peril.” This last remark seems to have given rise to an opinion that the defendant was allowed to take the money out of court, because the replication to the plea was a refusal of record to accept the money(14.) This reason Bailer, J., in Le&rew vs. Cook, very justly considers as absurd. The true reason was this : In ancient times, when the condition of an obligation was broken, the obligee was entitled to recover the whole penalty, however small the damages sustained might have been ; and the courts of common law had no power to relieve the defendant. If, therefore, the plaintiff had been permitted to take the money tendered, and also to take issue on the tender, if the issue was found in his favour, he would have had not only the money tendered, but the whole penalty of the bond besides; which would certainly have been unreasonable. But now in actions of assumpsit, &c. and-even in debt upon bond which can be chancered, there seems to be no reason why the plaintiff should not be allowed to take the money tendered in court, and also traverse the tender; because, even if the issue be found for him, he can recover no more than what is in justice due to him.

The defendant never was, nor is he now compelled to tender the money in court because any title to the money itself is vested in the plaintiff, but because the rule of law will not permit the defendant to be discharged from the debt till he has lodged the money in court for the use of the plaintiff. This argument is strongly fortified by the practice of permitting defendants to bring money into court upon the common rule, which is in all respects equivalent to a tender, and is substituted in the place of it.

But there are many cases in which a tender and refusal amounts to a discharge of the obligation.

*326Thus if a man make a single bond, or acknowledges a recognizance, and afterwards make a defeazance for the payment of a less sum at a day certain, if the less sum be tendered at the day the bond or recognizance is forever discharged, and the obligee or con usee has no remedy at law to recover the sum tendered(15.) As the sum tendered is collateral to the obligation, and not parcel of it, the law does not compel the obligor to bring it into court in the suit upon the obligation, but discharges him upon his shewing a tender; and no action can be maintained on the defeazance ; the obligee is, therefore, without remedy. Bac, Ab., Tender, F, pl. 5 & pl. 4.

So if A, without any debt or duty preceding, enfeoff B of land, with condition for the payment of 100Í. to B in nature of a gratuity, and A tender the money, and B refuse it, the land is discharged forever. Because the 100i. is collateral to the land, and B has forever lost the money, because he has no other remedy to recover it. Bac. Ab., Tender, F, pi. 3. — Co, Lilt. 209.

But if A borrow of B 100i., and after morgages land to B for the payment thereof, if A tenders the money, and B refuses it, A may enter into the land, and the bond is freed forever of the condition ; but the debt remains, and may be recovered by action of debt. Co. Lilt. 209.

In none of these cases is the obligation discharged, because any title to the money tendered vests in the obligee upon the tender ; for if it did not, he surely might have some remedy to recover it, and would mot be said to have lost the money forever. Besides, in the case of a mortgage for a precedent debt, if the money tendered vest in the mortgagee when tendered — not only the land, but the precedent debt, ought to be considered as discharged.

In an obligation with condition for the delivery of speci-fick articles, a tender and refusal of the articles is a perpetual discharge. Thus, if a man make an obligation of 1001,, with condition for the delivery of corn, timber, &c., or for *327the performance of an award, or the doing of any act, <fcc., this is collateral to the obligation, and a tender and-'refusal-is a perpetual bar. Go. Lift: 207-. — 9 Co. 79. M,Pcytoe‘s ease.

So if a man be bound in 200 cpiarters of wheat for delivery of 100 quarters of wheat, if the obligor tender at the day the 100 quarters, he shall not plead assumpsit, because, albeit it be parcel of the condition, yet they be bona peritura, and it is a charge for the obligor to keep them(16.) . From a remark of Coke upon this example of an obligation for the delivery of wheat, it is very clear that he was of opinion that the obligee had no remedy to recover the wheat tendered. For he says: “and the reason wherefore in the case of “ an obligation for the payment of money, the sum mention- “ ed in the condition is not lost by the tender and refusal; is “ not only for that it is a duty and parcel of the obligation, “ and therefore is not only lost by the tender and refusal, but “ also for that the obligee hath remedy by law for the same.” This remark has no point whatever, unless the wheat is to be considered as lost by the tender and refusal.

In the case of an obligation or contract for the delivery of specifiek articles, &e., the duty is not discharged by a tender or refusal, because any title to the thing tendered vests in him who refuses it; for in that case the condition or contract must be considered as performed, and should be so pleaded, but because the defendant, having done all in his power to perform the condition or contract, and having been prevented by the fault of the other party, the non-performance is by law excused. -Vhig, is evident from many cases that are to be found in the books.

Thus in Robbins vs. Luce (17.) To an action on a contract to deliver 27 oak barrels at the defendant’s house on a particular day, it was held to be a good bar that the defend* ant had the barrels ready at the time and place, and no one came on the part of the plaintiff to receive them. In this case it will hardly be contended that the barrels became the property of the plaintiff merely because they were ready.

*328So in the case of Slingerland vs. Morse,(18) which was an action on a promise to deliver to the plaintiff goods which he had bailed to the defendant, a tender and refusal was held fQ be a good bar. Yet it is very clear that no property vested in the plaintiff upon the tender, the property being in him before. -

In the case of Wilt & Green vs. Ogden,(19) which was assumpsit on a promise to pay the plaintiffs 270 -dollars, in drawing plister from Ithica to Oswego, it was held to be a good defence that the defendant went to the place and offered to draw the plaster, but the plaintiffs had no plaster there. It was a good excuse for the non-performance of the contract. It was also held that the plaintiffs could not recover back the consideration of the promise paid. They were, therefore, without remedy.

The case of Boynton vs. Emerson, decided in this court in the county of Hillsborough, October term, 1796, is a direct authority upon this, point. It was trover for certain neat cattle. It appeared in evidence that one P. Wright had by note contracted to pay Boynton a certain sum in neat cattle, to be delivered at a certain time and place in Stoddard, and to be appraised by indifferent men. At the time and place mentioned in the note, Wright attended with the cattle, and had them appraised agreeably to the contract. Blit Boynton did not attend to receive them, and Wright turned them into the highway. This was in December, 1791. Boynton lived in Massachusetts, and Emerson, to prevent the cattle from starving, tool^them into his possession and fed them — and gave Boynton notice that he had the cattle, and requested him to send and take them.— This - Boynton refused to do, but commenced an action against Wright upon the contract. This action, however, he afterwards abandoned and became nonsuit. After this, in 1795, Boynton demanded the cattle of Emerson, who refused to deliver them without pay for their keeping. Boynton refused to pay any thing for keeping,and brought the *329suit against Emerson, The court were of opinion that Boynton had no property in the cattle, and could not maintain the action,

On a former trial of the cause now before us, in 1815. the court (Livermore aud Ellis, justices) alter mature consideration were of opinion that Weld acquired no property in the leather tendered.

It is believed that it may with great safety be affirmed that there is nothing in the English books nor in the decisions of our own courts that gives the least countenance to the supposition that when speeifick articles are tendered and refused, the property still passes.

It seems, however, that a different opinion formerly prevailed in Connecticut (20), But it seems to have been ed without due consideration, and stands wholly unsupported by authority. Nor are we able to learn, either from Swift or Moot, the grounds of the decision.

It also seems, from some remarks made by individual judges in the case of Slingerland vs. Morse,(21) and in Coil & al. vs. Houston,(22) that an opinion is entertained in New-York that property may pass upon a-tender and refusal. But in neither of those cases was that the point before the court; and although we entertain the highest respect for the talents and legal learning of the judges who seem to have intimated such an opinion, we cannot rely upon their obiter dicta on points not before them, in opposition to the whole current of authorities from the earliest times.

It has also been contended, on the part of the plaintiff, that there is a strong analogy between this case and the case of an abandonment upon a policy of insurance, when the property often vests in the underwriter notwithstanding his refusal to accept the abandonment. But we think that the answer which the defendant’s counsel has given to this argument is decisive, and that tha vesting of properly in case of an abandonment depends upon circumstances peculiar to that species of contract, and that the supposed analogy fails altogether, ■ ■■: .

*330Thus it seems that the doctrine for which the plaintiff contends is not only "wholly unsupported by any adjudged case, which is entitled to have any weight in the decision, but stands contradicted by the whole current of authorities from the earliest to the present time. The principle to be deduced from adjudged, cases, of the most unquestionable authority, is, undoubtedly, that a tender and refusal of specifick articles transfers no property. :

Nor does this principle rest upon reasons in any degree unsatisfactory, nor can it prejudice any party to whom a tender is made, provided he taires care to be well instructed as to his rights and duties, and to act with good faith. In the present case, when the leather was tendered, the plaintiff , had a right to take a reasonable time to examine the tender, and to ascertain the quality and quantity of the leather tendered. If upon examination.he found the tender sufficient, it was his duty to have accepted it; but if, on the.contrary, he found it deficient, he had a right to reject it, and demand of the defendant a fulfilment of the contract according to its terms ; but as on the one hand the defendant was bound at his peril to make a sufficient tender, so on the other hand the plaintiff refused the tender, if sufficient, at his own peril. This was no hardship upon the plaintiff. lie could as easily ascertain whether the tender was sufficient as the defendant could. The advantage which the defendant has in being discharged from his obligation, and still keeping the leather, is merely accidental. When the plaintiff wrongfully rejected the leather, the defendant might have left it in the street, and have suffered it to have been lost or destroyed, and in so doing he would have done no injury to the plaintiff; but the law did not compel him to do this, which would have been an idle waste of property, but permitted him to keep it; nor did the law impose the duty upon the defendant of being at the trouble and expense of keeping it for the use of the plaintiff, who had refused it, but permitted him to have it to his own use. And there is no reason why the plaintiff should now recover the value of *331the leather from the defendant, any more than there would have been had the defendant left the leather in the street, and permitted it to be destroyed, as it might have been, if he had not kept possession of it. There may be more hazard in rejecting a sufficient tender, than in not making a sufficient one, because the one is done at the peril of losing the debt, the other is only at the- peril of being compelled to pay the money in lieu of specifick articles. But the plaintiff has no reason to complain of this inequality, for it was his own choice to take the hazard, and he has lost his debt by his own act.

In this case the dispute between the parties seems to have been whether the quantity of leather was sufficient, and that question depended upon what was the cash price of leather. Had the plaintiff been well advised, he would not have rejected the tender at the risk of his debt, but would have received the leather and endorsed the quantity upon the note. He might then have brought an action upon the mote to recover the balance, and have settled t,he question without incurring any hazard but that of costs. But’he saw fit to take a different course. ,' This was probably done through an innocent mistake; and if so, it was his misfortune, but cannot alter the law. However innocent the mistake may have been, he has no right to ask an indemnity from the defendant, who seems to have been in all things equally inqocent. And as he chose to exact of the defendant a rigid compliance with the terms of the contract, he must not complain if the defendant now chooses to shield himself under the rigid rules of the law.

Judgment on the verdict.

) Co. Litt. 207. m.'su. — a-o.

) 1 Bos. & Pul. 332, Le Grew vs. Cook.-1 Tidd's Prac. 566.- Law's Pl. in Assumpsit 470.

) Bacon's Ab. Tender F. pl. 11.-Barnes 358, Hull vs. Williams.

) 1 Co. Litt. 207.-2 Saunders 48, Fowell vs. Forrest, n. 1.

) Co. Litt. 207.

4 Mass. Rep. 474.

8 John. 474.

13 Johnson's R. 56.

1 Root 55 & 443. 1 Swift's Syst. 404.

8 Johns. 474.

3 John. Cases 242.

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