¶1The opinion of. the Court was delivered by
¶2Had the defendant, under the plea of tender, paid the money into court, and also the costs up to that time, on the common rule, the plaintiff, by determining to proceed for more, would, on a verdict finding no more due, have been liable to the costs from the time of such payment into court. This has long been the established practice of the English courts, and has been adopted in our own. - 2 Dall. 190. But in the present case no application appears to have been made by the defendant, to bring the sum tendered into court, nor airy rule of court obtained, and he, therefore, cannot claim the benefit of this practice. The case must turn upon the act of assembly of 1705, sect. 2, which enacts, that in all cases where a tender shall be made, and full payment offered, by discount or otherwise, in such specie as the party by contract or agreement ought to do, and the party to whom such tender shall be made, doth refuse the same, and yet afterwards will sue for the debt or goods so tendered, the plaintiff shall not recover any costs in such suit. It seems, by the verdict in this case, that the money was in court, but when paid in does not appear; nor that the costs to that time were paid; nor indeed would even this be material, if not done regularly by rule of court. The plaintiff, in such case, is still compelled to go on, and obtain a verdict for the sum really due and his costs, because a payment into court, irregularly made, cannot be recognized. The judgment, therefore, should have been entered for the defendant without costs.
¶3Judgment for the defendant for costs reversed, and judgment for the defendant without costs.