As to costs.

Juror with

that the effect of it would be, not to make the executor pay, but only lose his subsequent costs. Str. 796. Crutchfield v. Scott.

The plaintiff is not entitled to costs to the time of defendant's paying money into court, after the defendant has obtained judgment, in case of a nonsuit. Crosby and another v. Olorenshaw, 2 Maule and Selw. 335.

If Plaintiff proceeds further, and accepts the Money and Costs.

If the defendant pay money into court, and the plaindrawn,not en- tiff proceed to trial when a juror is withdrawn, the titled to costs plaintiff is not entitled to the costs up to the time of up to time of paying the payment of money into court. For whenever a juror is money into withdrawn, each party must pay his own costs. Buller, court, J. The form of the rule decides this question; for it was part of the rule, that if the plaintiff would not accept of the money brought into court, with the costs, &c. the said money shall be struck out of the declaration; then if it be struck out, that is not considered as part of the declaration. Stodhart v. Johnson, 3 Term Rep. 657. See 2 H. Black. 375.

If there are further proceedings after payment of money into court, and plaintiff wishes not to go on, he is at liberty so to do, allowing

the defendant

the subsequent costs.

A declaration was filed of Easter term; plea and money paid into court same term. Issue delivered in Trinity term, with notice of trial for the 6th July, which was countermanded the 3d. Application was made to the defendant's attorney for the amount of costs, down to the time of paying the money into court; with an offer to allow the subsequent costs, and settle the balance whichever way it might be; the defendant's attorney refused, insisting that he was entitled to his costs from the commencement of the action. Rule "why the master should not be directed to tax the costs "of the plaintiff, to the time of paying the money into

court, and the defendant's costs from that time, to the "countermanding the notice of trial; and why the de"fendant should not pay the balance to the plaintiff.” Per curiam: On inquiring of the master, it appears to be the constant and regular practice, that the plaintiff is entitled to have his costs to the time of paying money into court, and the defendant all his subsequent costs. Hartley v. Bateson, 1 Term Rep. 629.

N. B. This now may be done by summons.

A landlord declared in debt, 1st, for the double value; 2d, for use and occupation. The defendant pleaded nil debet to the first, and tender of the single rent before the action brought to the second count, and paid money into court, which the plaintiff took out before the trial, and still proceeded; and it was held, that this was no cause of non-suit, as upon the ground of such acceptance of the single rent being a waiver of the plaintiff's right to proceed for the double value, but that the case ought to have gone to the jury, and that the plaintiff's going on with the action after taking the single rent out of court, was evidence to shew that he did not mean to waive his claim for the double value, but to take it pro tanto. And it seems that though the single rent was paid into court on the 2d count, yet if the plaintiff had not accepted it, but had recovered on the first count, the defendant would have been entitled to have the money so paid in deducted out of the larger sum recovered. 10 East, 48. Ryalv. Rich.

The defendant having obtained a rule to amend the When entitled rule for payment of money into court, by confining it to to full costs. the money counts, and a new trial being granted upon payment of costs, and the plaintiff thereupon determining to take the money out of court, and not to proceed further, is entitled to all the costs of the action, and not merely to the usual costs of a new trial. 9 East, 325. Andrews v. Palsgrave.

After verdict for the defendant, plaintiff moved to be Plaintiff allowed his costs to the time of paying the money into comes too late court. Buller, J. Though the plaintiff was entitled to after verdict. the costs up to the time of paying money into court, if application were made before trial, yet he comes too late after trial. Rule refused. Stevenson v. Yorke, 4 Term Rep. 10. But if he gives notice of trial which he neglects to countermand, whereby the defendant is entitled to judgment as in the case of a nonsuit, he is entitled to costs, up to the time of paying money into court. Seamour v. Bridge, 8 Term Rep. 408.

Where money has been paid into court, short of the plaintiff's demand, and it is taken out, evidence is admissable to shew quo animo it was done; and it is not to be taken conclusively as an admission that the rest of the demand was unsatisfied. 5 Esp. Ca. N. P. 69. See 9 East. 325. the court will amend the rule.

Upon putting off a trial, the bail had paid a sum of
Y

If action abate by death.

After a rule for consoli

dating actions if money be paid into court, and

plaintiff nonsuited, he is not entitled to

costs to the

time of paying

in the same.

3 Term Rep. 657.

4 Doug. 10.

money into court, to abide the event of the suit, and the suit having afterwards abated by the death of the defendant, they were permitted to take the money out of court, although opposed by the plaintiff, and by the administrator of the defendant. Ward v. Lowing, 2 Smith's Rep. 49. M. 45 Geo. 3.

There were twelve actions on a policy of insurance. All the defendants paid money into court on one count, for money had and received (being a return of the premium) which was taken out, but plaintiff did not tax the costs. Afterwards the consolidation rule was obtained in the usual words, upon the submission of the defendants in the twelve actions to be bound by the verdict in the first action. The plaintiff was nonsuited in that first action; and the master in taxation allowed costs to plaintiff in all the actions up to the time when the money was paid into court. Rule to review his taxation. Stodhart v. Johnson, and Stevenson v. Yorke, were cited. Court said, that as the nonsuit in the action that was tried was conclusive in all the other actions, the plaintiff was not entitled to the costs in any of them, even up to the time when the money was paid into court. Burstall v. Horner, rule abs. 7 Term Rep. 373. Court thought, that according to the fair construction of the consolidation rule, the plaintiff was bound as well as defendant. (a)

Tender.

TENDER.

TENDER in a, legal sense denotes as much as carefully to offer, or circumspectly to endeavour, the performance of any thing belonging to us: as, to tender rent, is to offer it at the time and place where and when it ought to be paid; and it is an act done to save the penalty of a bond, and of money for rent, or contract, before distress or action brought. It may be made in purses, or bags, without shewing, or telling the same, for it is the receiver's business to put it out, and tell it, Co. Litt.

(a) There may be a judgment as in case of a nonsuit, & demurrer to evidence, a plea puis darrein continuance after payment of money into court; for the cause goes on substantially in the same manner if the money had not been paid in at all. See 1 H. Black. 93. 2 H. Black.

208. a; and it must be by offering the bags to the plaintiff, and not holding them under his arm. Noy 74. 5 Co. 115. And every tender at the common law, or which is given by statute, must be made before the writ sued out. Brown's Tend. 9. See 21 Jac. 1. c. 16. 8. 5.

The defendant said," he had the money in his pocket," When need and the plaintiff answered," you need not give yourself not lay the "the trouble of offering it, for I will not take it:" held money down. a good tender. Douglas v. Patrick, 3 Term Rep. 684.

Payment of a debt to the plaintiff's attorney is good. Tender to an Powell v. Little, 1 Black. Rep. 8. And if an attorney attorney. properly authorised to write for the money to defendant, and he does so, saying unless he pays him he will sue out a writ, I should conceive a tender before it is sued out, to him, is good, but he must be legally authorised. Vide Doug. 624.

If the debtor tenders a larger sum of money than is If there be a due, and asks change, this will be a good tender, if the tender of a creditor does not object to it on that account, but only than due, and larger sum demands a larger sum. Lord Kenyon. Black v. Smith, asks change. Peake's Cas. 88.

creditor refuse

The plaintiff and several other sailors being in a room No occasion together, defendant offered them as much money as was to produce the sufficient to pay all the crew their legal wages; but did money, if not distinguish the particular sum due to each. The to receive it amount of the whole was 117. the debt due to the plaintiff on account of 17. 58. All the sailors present refused to receive less than more being the money that the defendant promised them, which was due. extorted from him by a mutinous conduct. But the defendant did not produce the money, which he had ready to pay them. In an action by one, C. J. held, that the tender was a good one, they were told there was enough to pay all, and they objected to receive it, because they wanted more. There is no occasion to produce the money, if the creditor refuses to receive it on account of more being due. Ibid.

In an action of covenant for non-payment of rent, de- What will be fendant pleaded a tender on the day. The witness a good tender. proved, that defendant went purposely to pay his rent, and said to plaintiff, "I am come to pay you for the rent," but did not put down or shew the money; and it being proved that plaintiff refused upon other ground than that of objection to the quantum, or the quality, Buller J. held it to be a good tender in this case. Somerset Spring ass. 1786. Crompt. 152.

What is requisite to

tender.

To make a legal tender there must be either an actual offer of the money produced, or the production of it make a legal must be dispensed with by the express declaration, or equivalent act of the creditor: therefore where the defendant, departing from home left 101. with his clerk for the plaintiff, of which he informed the plaintiff, when he demanded a larger sum, and the plaintiff said he would not receive the 101. or any thing less than the whole demand, but the clerk did not offer the 101. this was held to be no tender. 10 East, 101. Thomas v. Evans.

What does not

amount to a

An offer, to pay a sum of money, to be accepted as the whole balance due, where a larger sum is legal tender. claimed, does not amount to a legal tender. 4 Campb.

A tender by an agent, who

part, tenders the whole at

156.

But a tender, by an agent of defendant of the whole is only autho- sum demanded by plaintiff, by pulling out his pocket. rized to tender book, and offering if he would go into a neighbouring public house to pay it, which the plaintiff refused to take, is good, although the agent is only authorized by the defendant to tender a sum short of the whole sum demanded, and offers the rest at his own risk. Read v. Goldring, 2 Maule and Selw. 36.

his own risk, is good.

Subpoena.

Where there

In Hilary term 1785, it was held, that a subpoena in the Exchequer being sued out before tender made, was good.

If A. B. and C. have a joint demand, and C. has a is a joint demand by separate demand on D. and D. offer A. to pay him both three, and one the debts, which A. refuses without objecting to the has a separate form of the tender on account of his being entitled only demand on to the joint demand, D. may plead this tender in bar of one of the an action on the joint demand, and should state it as a plead a tender. tender to A. B. and C. Douglas v. Patrick, 3 Term Rep. 683.

three, how to

If one come into posses

sion of goods wrongfully.

Non est factum, and tender as to part.

Where defendant came into possession of goods wrongfully, no tender is necessary of freight, &c. paid by him in order to enable plaintiff to maintain his action. Lempriere v. Pasley, 2 Term Rep. 485.

To an action on a bond, non est factum to the whole declaration, and a tender as to part, cannot be pleaded. Maclellon v. Howard, 4 Term Rep. 194. But a tender to the whole declaration is good. Rule, Trin. 19 Geo. 3. If a tender be A tender was made in the term, and before a bill filed made on the against an attorney. The bill was filed the same day day bill filed, the tender made, and summons was taken out before Mr.