[28]*28The following opinion was delivered:
By Mr. Justice Marcv.
The bill in this case was filed for the redemption of forty shares of stock, pledged or transferred to the respondent, as security for the payment of a loan of $500. In the answer the respondent admits that he holds the stock as a pledge, but denies that it is for the loan of the $500 alone; he says it was pledged for the repayment of that sum and about $800 more, being the amount of several loans antecedent to that charged in the bill. The pledge was effected through the agency of Daniel 8. Gris-wold, and a question is now raised as to his power to pledge for any other loan than that for $500, which was made for the benefit of the appellant; the other loans for which the respondent pretends to hold the stock were made on Gris-wold’s individual account. The agency of Griswold is stated in the bill, and the respondent is charged with knowing it; but the respondent in hig answer positively denies such knowledge, and affirms that Griswold did not inform him that the stock belonged to the appellant, or that the loan was on her account; he made the loan, he says, to Griswold individually, and took the stock as his property, without any knowledge or belief that it belonged to the appellant.
It was asserted on the argument, that the question as to Griswold’s power to pledge the stock for any sum beyond $500, was not agitated in the court below; if so, it ought not to be raiseCl here. That matter does not seem to' have been in litigation there; nothing is said about it in the chancellq.'8s opinion, nor does the proof in the case bear upon the.,-question. The testimony, however, shows that Griswold was an agent of the most general character; he had the entire charge of the appellant’s pecuniary concerns, and managed them without any very special direction from her. He was also the secretary of the Williamsburgh Ferry Company, and brought the certificate of the stock to the respondent with his name therein inserted. His right to transfer is not questioned, and, if it was given with restrictions, that should have been clearly shown before it could be set up to the prejudice of the respondent. By giving Griswold [29]*29power to transfer the stock, and thereby enabling him to exhibit himself in the light of the absolute owner, the appellant put him in a situation to practice a fraud; and if he has done so, she is to suffer thereby, rather than a bona fide purchaser. If, therefore, we were at liberty to entertain the question as to Griswold’s authority to pledge the stock to the extent and for the purpose the respondent contends he did, we should find no difficulty, I apprehend, in determining that the appellant cannot avail herself of his want of authority without bringing home to the respondent notice of Griswold’s abuse of his agency. Knowledge that the stock was the property of the appellant is explicitly charged in the bill, and positively proved by the testimony of Griswold; and the denial in the answer is as explicit and positive. The testimony of Griswold, unsupported by any other witness, and uncorroborated by circumstances, cannot establish, in opposition to the denial of the answer, that the respondent had knowledge that Gris-wold was acting as the agent of the appellant in making the pledge of the stock. If it should appear, therefore, that the pledge was a security for all the loans instead of the $500, the appellant cannot have the stock re-assigned to her by paying that sum, on the ground that Griswold had no authority to pledge it for more.
Assuming that the answer in relation to the sums of money for which the stock was pledged is responsive to the bill, or so much so, as to make it evidence for the respondent (and whether it is or not, I shall presently examine) is it disproved 1 All there is to disprove it, is the testimony of Griswold, which of itself cannot outweigh the answer. There is nothing in the other testimony or in the circumstances to add to its strength on this point; on the contrary, I think they are rather corroborative of the answer. When the $500 were paid, acknowledgments were given by Griswold in his own name. This he admits was contrary to his usual mode of doing the appellant’s business ; his practice was to add the word agent to his name when he signed writings as her agent, and the reason for not doing so in this instance is not very satisfactory. Though this fact does not bear upon the precise point as to the extent of the pledge, yet it well ac[30]*30cords with the respondent’s account of the transaction, and is somewhat inconsistent with that set forth in the bill. When there was an attempt to adjust this matter in the presence of D. R. Dunham and 3?. A. Tracy, Griswold does not appear to have, asserted, as it was natural he should do, that the pledge was only for the $500. There was considerable angiy conversation between him and the respondent on that occasion, particularly when the latter insisted upon retaining the shares-of stock to indemnify himself for what he might be obliged to pay as security for the appellant in a replevin suit. I'. Griswold had made up his mind to yield to the first exaction in extending the pledge over the loans antecedent to that for $500, he would have been likely to advert .to this unfair conduct when another claim was set up by the respondent to be adjusted before he would consent to transfer the stock. I do not consider Griswold’s remark to the respondent, as testified to by Dunham, “ suppose you transfer to Mr. Tracy the forty shares, and he will pay you the $500,” when taken in connection with the reply, as making out a distinct assertion that the pledge was for $500 only. To that proposition the respondent objected, and said he wanted to settle the whole account. This objection was not attempted to be removed, as it was very natural it should have been if the pledge applied only to the $500, by an allegation from Griswold that that sum was all for which the pledge was given. The statement in the answer that the pledge was for $1300 instead of $500, is not disproved; and it must be considered as establishing that fact, if this part of it is proof against the appellant. The chancellor viewed it in that light, and made it in part the foundation of his decree.
It is said, on the part of the appellant, that the answer, by setting up a claim to retain for a sum beyond the $500 specified in the bill, introduces new matter, not responsive to the bill, and in avoidance of its equity. The rule on this subject, as I understand it, is, that when an answer admits a distinct fact which goes to charge the defendant, and alleges another not responsive to the bill, by way of discharge or avoidance of that admitted, the latter is not established by the answer. If a guardian or trustee is called on to account, [31]*31and in his answer admits a sum of money to have been received, and then proceeds to shew the appropriation of it, what he says about the appropriation, unless that and the receipt of it can be regarded as parts of a single transaction, is not evidence in his favor. • The case which most aptly illustrates, and goes the farthest to sustain the position for the appellant, is that of Green v. Hart, 1 Johns. R. 580. One Johnson had given his note to Green, which was accompanied by a mortgage as security. Green endorsed the note to Hart, and at the same time delivered to him the mortgage. Hart filed his bill, stating the above facts, and .alleging that he paid a full and valuable consideration for the note and mortgage, and prayed that the money due on the note might be paid, or the premises sold.
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[28]*28The following opinion was delivered:
By Mr. Justice Marcv.
The bill in this case was filed for the redemption of forty shares of stock, pledged or transferred to the respondent, as security for the payment of a loan of $500. In the answer the respondent admits that he holds the stock as a pledge, but denies that it is for the loan of the $500 alone; he says it was pledged for the repayment of that sum and about $800 more, being the amount of several loans antecedent to that charged in the bill. The pledge was effected through the agency of Daniel 8. Gris-wold, and a question is now raised as to his power to pledge for any other loan than that for $500, which was made for the benefit of the appellant; the other loans for which the respondent pretends to hold the stock were made on Gris-wold’s individual account. The agency of Griswold is stated in the bill, and the respondent is charged with knowing it; but the respondent in hig answer positively denies such knowledge, and affirms that Griswold did not inform him that the stock belonged to the appellant, or that the loan was on her account; he made the loan, he says, to Griswold individually, and took the stock as his property, without any knowledge or belief that it belonged to the appellant.
It was asserted on the argument, that the question as to Griswold’s power to pledge the stock for any sum beyond $500, was not agitated in the court below; if so, it ought not to be raiseCl here. That matter does not seem to' have been in litigation there; nothing is said about it in the chancellq.'8s opinion, nor does the proof in the case bear upon the.,-question. The testimony, however, shows that Griswold was an agent of the most general character; he had the entire charge of the appellant’s pecuniary concerns, and managed them without any very special direction from her. He was also the secretary of the Williamsburgh Ferry Company, and brought the certificate of the stock to the respondent with his name therein inserted. His right to transfer is not questioned, and, if it was given with restrictions, that should have been clearly shown before it could be set up to the prejudice of the respondent. By giving Griswold [29]*29power to transfer the stock, and thereby enabling him to exhibit himself in the light of the absolute owner, the appellant put him in a situation to practice a fraud; and if he has done so, she is to suffer thereby, rather than a bona fide purchaser. If, therefore, we were at liberty to entertain the question as to Griswold’s authority to pledge the stock to the extent and for the purpose the respondent contends he did, we should find no difficulty, I apprehend, in determining that the appellant cannot avail herself of his want of authority without bringing home to the respondent notice of Griswold’s abuse of his agency. Knowledge that the stock was the property of the appellant is explicitly charged in the bill, and positively proved by the testimony of Griswold; and the denial in the answer is as explicit and positive. The testimony of Griswold, unsupported by any other witness, and uncorroborated by circumstances, cannot establish, in opposition to the denial of the answer, that the respondent had knowledge that Gris-wold was acting as the agent of the appellant in making the pledge of the stock. If it should appear, therefore, that the pledge was a security for all the loans instead of the $500, the appellant cannot have the stock re-assigned to her by paying that sum, on the ground that Griswold had no authority to pledge it for more.
Assuming that the answer in relation to the sums of money for which the stock was pledged is responsive to the bill, or so much so, as to make it evidence for the respondent (and whether it is or not, I shall presently examine) is it disproved 1 All there is to disprove it, is the testimony of Griswold, which of itself cannot outweigh the answer. There is nothing in the other testimony or in the circumstances to add to its strength on this point; on the contrary, I think they are rather corroborative of the answer. When the $500 were paid, acknowledgments were given by Griswold in his own name. This he admits was contrary to his usual mode of doing the appellant’s business ; his practice was to add the word agent to his name when he signed writings as her agent, and the reason for not doing so in this instance is not very satisfactory. Though this fact does not bear upon the precise point as to the extent of the pledge, yet it well ac[30]*30cords with the respondent’s account of the transaction, and is somewhat inconsistent with that set forth in the bill. When there was an attempt to adjust this matter in the presence of D. R. Dunham and 3?. A. Tracy, Griswold does not appear to have, asserted, as it was natural he should do, that the pledge was only for the $500. There was considerable angiy conversation between him and the respondent on that occasion, particularly when the latter insisted upon retaining the shares-of stock to indemnify himself for what he might be obliged to pay as security for the appellant in a replevin suit. I'. Griswold had made up his mind to yield to the first exaction in extending the pledge over the loans antecedent to that for $500, he would have been likely to advert .to this unfair conduct when another claim was set up by the respondent to be adjusted before he would consent to transfer the stock. I do not consider Griswold’s remark to the respondent, as testified to by Dunham, “ suppose you transfer to Mr. Tracy the forty shares, and he will pay you the $500,” when taken in connection with the reply, as making out a distinct assertion that the pledge was for $500 only. To that proposition the respondent objected, and said he wanted to settle the whole account. This objection was not attempted to be removed, as it was very natural it should have been if the pledge applied only to the $500, by an allegation from Griswold that that sum was all for which the pledge was given. The statement in the answer that the pledge was for $1300 instead of $500, is not disproved; and it must be considered as establishing that fact, if this part of it is proof against the appellant. The chancellor viewed it in that light, and made it in part the foundation of his decree.
It is said, on the part of the appellant, that the answer, by setting up a claim to retain for a sum beyond the $500 specified in the bill, introduces new matter, not responsive to the bill, and in avoidance of its equity. The rule on this subject, as I understand it, is, that when an answer admits a distinct fact which goes to charge the defendant, and alleges another not responsive to the bill, by way of discharge or avoidance of that admitted, the latter is not established by the answer. If a guardian or trustee is called on to account, [31]*31and in his answer admits a sum of money to have been received, and then proceeds to shew the appropriation of it, what he says about the appropriation, unless that and the receipt of it can be regarded as parts of a single transaction, is not evidence in his favor. • The case which most aptly illustrates, and goes the farthest to sustain the position for the appellant, is that of Green v. Hart, 1 Johns. R. 580. One Johnson had given his note to Green, which was accompanied by a mortgage as security. Green endorsed the note to Hart, and at the same time delivered to him the mortgage. Hart filed his bill, stating the above facts, and .alleging that he paid a full and valuable consideration for the note and mortgage, and prayed that the money due on the note might be paid, or the premises sold. The answer set up usury in the consideration for the assignment of the note. One of the questions was whether usury in the transfer of the note was established by the answer. The ground taken by the appellant was that the respondent having set forth in his bill that the transfer was for a full and valuable consideration, the answer setting up usury was responsive to that charge, and therefore adequate proof of the usury. This view of the case is answered by Spencer, justice, who delivered the unanimous opinion of the court. He considered that Hart had unnecessarily inquired into the consideration of the transfer ; but as he bad done so, Green might .have denied it, and then Hart would have been put to his proof. If it was incumbent on him to establish that fact, without proof of it, he would have failed in his suit. The burden of shewing that the consideration was illegal or inadequate rested on Green. When he made a charge of usury, he departed from the question put to him, which admitted only of an affirmative or a negative answer; and it was wholly immaterial whether it was the one or the other. “ I view,” said the learned judge, “ the appellant’s answer charging usury as insisting on a distinct fact by way of avoidance. The respondent having replied, and given him an opportunity to prove the fact, and he having failed to do so, his answer is no evidence of the fact.” Chancellor Kent considers this decision as carrying the doctrine, denying the answer to be evidence, to its most mire[32]*32stricted extent. 2 Johns. Ch. R. 93, note. It seems to proceed upon two grounds: 1st. that the allegation replied to was unnecessarily inserted in the bill; and 2d. that the answer departed from the question, and set up a distinct fact in avoidance of the transfer of the note. The last was the principal ground of the decision, and points out a distinction which must, I think, control our decision on this part of the case. Has the respondent here departed from the questions he was bound to answer, and set up matter in avoidance of the appellant’s claim? Would a simple negative or affirmative answer, as to whether the stock was or was not pledged for the loan of $500, have been all the appellant could have required of him? He was required to answer to the premises of. the bill. Whether he has gone beyond what he was required to do, may be tested, I think, by supposing an interrogatory inserted in the bill, pointing to the very matter which he has answered, and he had refused to answer; would the court have compelled an answer ? Interrogatories are not a necessary part of the bill; nor are they te be answered, unless they are such as are warranted by the premises or the allegations of the bill. Redesdale’s Treat. 44. If the respondent had stopped after denying that the stock was pledged for the loan of $500, and refused to answer an interrogatory as to the amount for which it was pledged, because such an interrogatory was not warranted by the bill, there would have been, it appears to me, very little difficulty in shewing the answer to be insufficient. The bill seeks a disclosure, not only of the pledge, but of the attendant circumstances. The sum for which it was made is a most important fact connected with the transaction of the pledge. If, then, the respondent answers in relation to the premises of the bill what the appellant could have required him to answer by an interrogatory, the answer must necessarily be regarded as responsive to the bill. Again, I may ask, what was the object of the suit? Not merely to ascertain the simple fact whether the pledge was for the loan of $500; it was to procure a decree for the transfer of the stock. The defendant is bound to admit or deny the facts stated in the bill, with all their material circumstances, with[33]*33out special interrogatories for that purpose. Coop. Pl. 11. 1 Johns. C. R. 75. The amount for which the stock was held by the respondent was a material circumstance. When he acknowledged the pledge of the stock as he was required to do, he was bound to shew the nature and extent of it, to the end that a decree might be made for its redemption. Stating the fact that it was pledged for $1309, instead of $500, was only disclosing a part of the transaction, and cannot therefore be regarded as distinct and new matter set up in avoidance of the equity admitted by the respondent, or made out by the appellant. I come to the conclusion that the answer establishes the fact that the stock was held in pledge for $1300,64.
We are next to inquire if there was a sufficient tender of this sum before the bill was filed. The facts relied on to make out the tender are those which took place when Dun-ham and Tracy were present. There was then an offer to pay the amount for which the stock was pledged by Mr. Tracy’s check. He took from iiis pocket a blank check, and was about to fill it up for the proper sum when the respondent asserted "a claim for the full value of the stock, which was considered to be worth at that time about $2000. If the respondent had not insisted upon what it is not now pretended he had a right to, the stock would probably have been then redeemed ; but enough was not done, it is thought to constitute a legal tender. I have looked at the cases referred to on the argument on the subject of a tender, and I find not one among them that goes quite so far as we should be obliged to go in pronouncing what occurred upon this occasion a sufficient tender. There is a nisi prius case in 2 Carr, and Payne, 77, where it was held that an offer by a third person to go up stairs and get the sum which the defendant said he was willing to give the plaintiff, and the plaintiff replying that it was unnecessary to do so, for he would not take it, was sufficient proof to sustain a plea of tender for that sum. There has been, and I think very properly, some relaxation of the rigid rules in relation to making a tender; but if the effect of this relaxation is to render it a matter of uncertainty what shall constitute a tender, nothing will have been gain[34]*34ed by it. Rigid rules are, upon the whole, better than uncertain ones. In Thomas v. Evans, 10 East, 101, the king’s bench decided that to make a legal tender, “ the actual production of the money due, in monies numbered, is not necessary, if, the debtor having it ready to produce and offering to pay it, the creditor dispenses with the production of it at the time, or do any thing which is equivalent to that.” The equivalent act spoken of by Lord Ellenborough is something more, it would seem, than a bare refusal to receive the money proposed to be paid, because the sum was not large enough ; for that was done by the creditor in that case, and yet the tender was held to be insufficient. Ch. J. Dallas, in charging the jury in Kraus v. Arnold, said that “to constitute a legal tender, the money must be actually produced, unless the plaintiff dispenses with the tender by expressly saying the defendant need not produce the money, as he would not accept it.” This decision was confirmed by the English common pleas. 7 Moore, 59. 17 Com. Law R. S. C. 70. There is, in the facts of the last case, a striking resemblance to those in the case now under consideration. The agent of the defendant offered to pay the clerk of the plaintiff’s attorney £7 12s., saying that one Tinson had the money for that purpose; but the clerk demanded £8. Tinson was present, and put his hand in his pocket to take out his pocket-book to pay the £7 12s.; but the agent of the defendant desired him not to do so, as £8 were demanded. The court said the money should have been produced, for the clerk might have been tempted to take it. It is to be observed, that in both the cases to which I have referred, the circumstance of demanding more than it was proper to pay was not considered an act equivalent to dispensing expressly with the production of the money. We must say in this case, unless we deny the law which was applied to those cases, that the. actual production of the money was not dispensed with ; neither money nor a check was tendered ; and although a broker was present, who was willing to give his check for the sum to be paid, I am afraid it would be innovating upon well established principles to hold that this amounted to a tender. [35]*35I am obliged therefore to adopt the conclusion to which the chancellor came on this point. The tender was not made out.
There was a question on the argument as to what should have been the decree, admitting that it must be against the appellant. Should it have been, as it is, a decree for a foreclosure, if the appellant did not redeem within a specified time, or should the bill have been dismissed ? If the dismissal of a bill to redeem, after a hearing upon the merits, operates as a bar to any future claim to redeem, then a decree of dismissal, where there is a right to redeem, would be erroneous. That such would have been the effect of a dismissal of the appellant’s bill. I think is established by the case of the Bishop of Winchester v. Paine, 11 Ves. 199, Lord Eldon says, that “ If a bill filed by a mortgagor for redemption is dismissed, the money not being paid at the time, that operates as a foreclosure, and is equivalent to a decre'e of foreclosure.” “The equity of redemption,” says Chancellor Kent, “may be foreclosed by the act of the mortgagor himself; for upon a bill to redeem, the plaintiff is required to pay the defendant by a given time, which is usually six months after the liquidation of it; and upon his default, the bill to dismissed for non-payment, which is a bar to a new bill, and is equivalent to a decree of absolute foreclosure.” 4 Kent’s Comm. 179. The appellant had an undoubted right to redeem on paying the $1300,64. A decree, therefore, which should have denied h'er that right in this suit, and would have operated as a bar to her right on another bill or in a suit at law, would have been unjust. I think the decree for a foreclosure, unless the appellant came in and redeemed within the time mentioned therein, was correct.
I regret, however, that (he respondent was allowed costs. His unwarrantable conduct in seeking to retain the stock on a claim for which it was never pledged, prevented undoubtedly a redemption; but as costs are so much in the discretion of the chancellor that an appeal can never or rarely be sustained, on his decision relating to them, it would not be correct perhaps to modify the decree in this respect, if, however, the consideration which in my judgment should have withheld costs from the respondent in the court below, could [36]*36properly be permitted to influence our decision on the question of giving costs on this appeal, I would most readily yield *°
This being the unanimous opinion of the court, with the exception of a single member, the decree of the chancellor was thereupon affirmed, but without costs. On the question of costs, the members were divided j 5 being for, and 12 against allowing costs.