
    Henry Emerson vs. Charles E. White.
    A tender of the amount of a debt without costs is insufficient, after a writ has been sued out thereon, and sent to an officer for service, although not yet actually delivered to him.
    Action of contract. Answer, a tender of the amount of the debt. Trial and verdict for the defendant in the superior court of Suffolk at January term 1857, before Nelson, C. J., who signed this bill of exceptions :
    “ It was in evidence that the writ was made out at the plaintiff’s request, and sent to the sheriff for service between the hours of nine and half past nine o’clock in the forenoon; that at or about eleven o’clock of the same forenoon the defendant made the tender and demanded a receipt in full; and after-wards, between said eleven o’clock and two in the afternoon, the defendant renewed his tender, but without condition, and was then informed that costs had been made ; that on or about one o’clock of the same afternoon service of said writ was made by attachment of the defendant’s property. The court ruled that for the purposes of the tender the commencement of the action was the time when the writ was delivered to the sheriff to be served. And to this ruling the plaintiff excepts.”
    
      E. Wright, for the plaintiff,
    cited Gardner v. Webber, 17 Pick. 407; Badger v. Phinney, 15 Mass. 364; Bunker v. Shed, 8 Met. 150; Field v. Jacobs, 12 Met. 118; Johnson v. Farwell, 7 Greenl. 370; 2 Greenl. Ev. §§ 602, 603, 605; Rev. Sts. c. 100, § 15.
    
      J. JI. Wakefield, for the defendant,
    cited Rev. Sts. c. 100, §§ 14, 15; Tufts v. Kidder, 8 Pick. 540; Gardner v. Webber, 17 Pick. 412; Swift v. Crocker, 21 Pick. 242; Seaver v. Lincoln, 21 Pick, 269; Bunker v. Shed, 8 Met. 152; Underwood v. Tatham, 1 Ind. 276; State Bank v. Cason, 5 Eng. 479.
   Dewey, J

The ruling of the superior court “ that for the purposes of the tender, the commencement of the action was the time when the writ was delivered to the sheriff to be served,” was not correct. After the writ was actually made, and measures taken, as in the present case, to secure the service of the same by sending it to the sheriff, a tender of the amount of the debt without the costs would not be a valid tender, although there had been no aciual delivery of the writ to the sheriff If the evidence established the fact that the writ was made out, and sent to the sheriff for service, as the bill of exceptions assumes, prior to half past nine o’clock, and the tender was not made until eleven, the court should have instructed the jury that the tender should have been of the amount of the debt and the costs that had accrued, to make it an effectual tender.

Exceptions sustained.  