¶1—The court could not go behind the judgment in search of a tender of money such as this ; and the point is to be considered as if affidavits to the fact had not been read. The appellant defendant eventually succeeded in reducing the judgment; which, under the previous act, would have stripped it of the incident of costs. But the act of the 9th of April 1833 directs the costs to abide the event of the suit, unless the defendant, when appellant, shall'have offered before the justice or referees to give judgment for what he admitted to be due, an offer that was not made here. Granting that the tender of money, being equally beneficial as a judgment for it, is within the equity of the act, yet at least as much must be tendered as is due at the time as debt or costs. But here no more was tendered than a sum strictly equal to the debt; and the plaintiff was not bound to receive it. A judgment would have relieved him from the costs incurred, and would have been preferable. It is the specific tender pointed out by the law, and is not to be dispensed with, if at all, for any thing less favourable. The case is therefore within the enacting clause which directs that the successful party recover costs.
¶2Judgment as to costs reversed, and judgment generally given for the plaintiff.