
    Phillips v. Shearer.
    I. Brastice: offer to confess judgement : costs. To entitle a defendant to costs by reason of an offer to confess judgment, under section 2399 of the Code, such offer must be confined to the matters in suit.
    
      Appeal from the Delaware Gireuit Court.
    
    Saturday, June 11.
    On the fifth day of October, 1880, the plaintiff commenced an action before A. Tuttle, J. P., claiming of defendant $95.44 on account, for milk, corn, damages to stock, one-half interest in a calf, merchandise, etc., and notified defendant to appear before said justice at 10 o’clock a.m>, October 12th. On the 9th day of October, the defendant served upon plaintiff a notice in writing as follows: “You are notified that on the 12th of October, A.D. 1880, at ten o’clock, in the forenoon of that day, I shall appear before A. Tuttle, J. P.,'within and for the county and State aforesaid, at his office in South Fork township in said county, and will then and there offer to confess judgment in your favor, on the certain claim or demand held by you against me for corn, etc., and for milk, due you up to date of October 12th, 1880, and all claims you have against me, for the sum of sixty dollars and costs in said action. Tou can attend at said time and place and accept said confession if you desire so to do.” At the time prescribed in the notice the plaintiff appeared by counsel, and refused to accept the offer to confess judgment. Thereupon the cause was tried to a jury and a verdict was returned for the defendant. The plaintiff appealed. The cause was tried to a jury in the Circuit Court, and a verdict was returned for plaintiff for $31.41. The defendant thereupon filed a motion to tax to the plaintiff all costs subsequent to October 12th, for the reason that the amount recovered was less than the amount for which the defendant offered to confess judgment. The court overruled the motion, and rendered judgment against the defendant for the $31.41 and costs. The defendant appeals. The court certifies the question upon which it is desirable to have our opinion to be as follows: “ Did the court err in overruling the motion of defendant, to tax all costs subsequent to date of October 12th, 1880, to plaintiff ?”
    
      Welch <& Welch, for the appellant.
    
      Herrick dé Doxsee and J. B. Powers, for the appellee.
   Day, J.

The offer to confess was made under section 2899 of the Code. The offer is not confined to the claims made by the plaintiff, but includes the amounts due on the claims made, up to October 12th, 1880, the date of trial, and all other claims which the. plaintiff has against the defendant. If the plaintiff had accejffed the offer, it Would have been in satisfaction not only of the claims sued upon, but of all other claims which the plaintiff may have held. The plaintiff recovered upon the claims only upon which he sued. The defendant had no right to embrace other claims in his offer to confess. The court did not err in overruling the defendant’s motion. ’ Affirmed.  