
    
      BELDEN & AL. vs. ROSE.
    
    Appeal from the court of the first district.
    Evidence may be received to support a plea of tender, in which the time is not stated.
    When the court is not satisfied with the verdict the case is remanded.
   Martin, J.

delivered the opinion of the court. In this case, there is a bill of exceptions to the opinion of the court, permitting the defendant to give evidence to support a plea of tender, the period of which was not stated in the answer.

The statute does not require defendants to state the matters they urge in their defence, with all the correctness of time and place, which are required in the petition; the reason is, that the defence is more favoured, than the claim. Payment may be pleaded, without saying when and where it was made, and tender is more analogous to payment, than any other defence. We think the district court did not err.

Maybin for the plaintiffs—Eustis for the defendants.

The defendant is in possession of a verdict and judgment. We have not viewed the case in the same manner as the jury, and it becomes our duty to remand the case, for a second inquiry, especially as the plaintiff made an unsuccessful attempt to set the verdict aside.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial, the defendant and appellee paying costs in this court.  