Daughdrill v. Sweeney , 41 Ala. 310 ( 1867 )

JUDGE, J.

These cases being of the same character, and inasmuch as the decision of one question involved will be decisive of them all, they will be considered together.

Equity, in many cases, adopts and follows the analogies furnished by the rules of law. By a statute of this State, “ a plea of tender of money, or of a thing in action, must be accompanied by a delivery of the money, or such thing in action, to the clerk of the court.” — Code, § 2245. The analogy of such a plea, to each of the bills in these eases, is sufficiently striking to authorize it to be followed. In Taylor v. Reed, (5 Monroe, 36,) it was held, that if a party “ pretends to avail himself of the plea of tender in equity, because he could not make it at law, he ought to be held to as great strictness as he would be held to at law.”—See, also, Spoor v. Phillips, 27 Ala. 193.

If a legal tender was made, of the money acknowledged by the complainant in each case to be due, it should have been followed up by a payment of the money into court, at the time of filing their respective bills ; and a compliance with this requisition should be shown by an appropriate averment in each bill. Such an averment not having been made, the bill in each case is without equity.

We waive all consideration of the question as to the validity of a tender, made in the treasury-notes declared by act of congress “ lawful money and a legal tender in payment of all debts,” &c., becaused it is not necessary to a decision of the cases before us. We are informed, however, that the supreme court of the United States has recently decided this question in the affirmative; but we have not had access to the opinion. We waive, also, all consideration of the other questions presented in each case, con_ nected with the alleged tender, some of which have been so ably argued by counsel for the appellees.

The decree of the chancellor in each case, dissolving the injunction, is affirmed, with costs.