1. One of the questions raised by the bill of exceptions, is, of the right of the defendant to put his own declarations before the jury as evidence, because these were made at the time of refusing to receive payment of the note given when the horse was sold. The tender of payment may not have been very material in this cause, but we cannot say it was improper, as otherwise a strong inference might be drawn against him on account of the omission. Evidence being admissible that a tender was made, the fact must stand as it does in other cases, and if the refusal cannot be shown without letting in all that the opposite party may choose to say, it would in most instances be a dangerous ceremony. In general, a tender is a mere formal act, having often no other object than the avoidance of a conclusion, and in this view it seems precisely similar to a formal demand of a chattel for the purpose of showing a conversion. In both cases it is possible there may be such a peculiar condition of circumstances as might authorize the reply of the party to be given in evidence, though in general ¿he refusal is rather an act than a declaration. In the one case, the offer to pay, and in the other the demand of the chattel, is made, and if not accepted or refused, the same legal consequence results, independent of what may be said on the occasion. We do not remember to have met with any decision on the matter of tender, but with regard to the demand of chattels, we have two cases in which the rule is settled substantially as above stated. [Dent v. Chiles, 5 S. & P. 383; St. John v. O’Connell, 7 Porter, 466.] The declarations of the' defendant, which were in this case put before the jury as part of the conversation arising at the tender, were well calculated to affect the plaintiff, although it may be the other evidence was sufficient to make out the facts then asserted. How*352ever this may be, the error is clear in permitting the declarations to go to the jury, and because of it the judgment must be reversed.
2. On the other points of the case, we think there is no substantial error. Without saying any thing which may prejudice the cause at another trial, w;e think it sufficiently clear, from the whole evidence, that a jury might have come to the conclusion that the defendant was the victim of a preconcerted plan. To say more upon this subject, might produce the effect of withdrawing from a jury, what is not merely their province, but their duty to determine, by the exercise of their own judgment, without being in the least degree influenced by the opinions of others.
3. It is proper however to say, that when property is obtained by one individual from another, without any, or for a grossly inadequate compensation, by a preconcerted plan to effect the particular design, by representing a worthless thing as of value, it is not in our judgment necessary for the injured party to offer to return the valueless thing before his right of recaption attaches.
For the error we have ascertained, the judgment is reversed and remanded.
