Opinion
December Term, 1858.
To support the plea of tender, it must be shown that it was made before the commencement of the suit.
Paying money to a magistrate, without obtaining, upon an appeal, a rule to pay the money into Court, is not according to the practice upon this subject, and will not avail the defendant any thing.
APPEAL from a justice's judgment, tried before SAUNDERS, J., at the last Fall Term of Randolph Superior Court.
Gorrell, for the plaintiffs.
No counsel appeared for the defendant in this Court.
The plaintiffs' offered evidence to show, that they were to thresh the defendant's wheat for the 17th bushel; but the defendant had the option to pay for the threshing, in money, at the market value of the wheat due for toll.
The defendant proved, that when the plaintiffs called upon him for the wheat due for threshing, he offered to pay, in money, seventy-five cents per bushel, which the plaintiffs refused, saying, the defendant had offered them eighty cents per bushel, which they had refused. On the trial before the magistrate, defendant produced, and paid to the magistrate $6,28, in specie, which was admitted to be the true amount at eighty cents per bushel. This sum was returned into Court, by the magistrate, with the papers in the case.
A verdict was taken for the plaintiffs subject to the opinion of the Court, upon which his Honor subsequently gave judgment for the plaintiffs, and the defendant appealed.
The opinion expressed by his Honor, in the Court below, was fully sustained by cases previously adjudicated in this Court. See Murray v. Windley, 7 Ire. Rep. 201, and Haughton Booth v. Leary, 3 Dev. and Bat. Rep. 21. To support the plea of tender, it must be shown that it was made before the commencement of the suit. If it were made afterwards, it cannot be pleaded as a bar; because it admits the necessity of the suit, as well as the justice of the demand, and the plaintiff ought, therefore, to have his costs. But, say the Court, in the last mentioned case, "by the modern equitable practice, the defendant, in such a case, pays principal, interest and costs, up to the time, into Court, and the Court lays the plaintiff under a rule to take the money, or proceed further in the case at his peril." The defendant omitted to adopt such a course in the present suit, and the consequence is, that judgment against him, in the Court below, for the full amount of the plaintiffs' claim, and for all the costs, must be affirmed.
PER CURIAM, Judgment affirmed.