
    John Burt v. Richard H. Dodge.
    A tender made under the statute, during pendency of suit, must include the costs up to the time of tender.
    Where the court below has erred in favor of the plaintiff in error, he can not avail himself of it to reverse the judgment.
    Error to the Supreme Court of Morgan county.
    
      The record shows that Dodge brought a suit against Burt, on a note, for $118. The action was assumpsit. The defendant plead the general issue, and gave notice of set-off. At the trial term of the court of common pleas, on his motion, Burt was ordered to deposit with the clerk, for Dodge, $85.48, which he admitted to be duo, and which he then paid to the clerk. Verdict and judgment were for Dodge, in tho common pleas, and an appeal taken.
    The cause was submitted to a jury in the Suprome Court, at the November term, 1843, and tho following verdict returned:
    That the defendant did assume and promise, etc., 11 and the jury assess the damages of the said plaintiff, etc., to $85.44, the amount which the said defendant admits to be due to the said plaintiff, and deposited as a tender.”
    Whereupon the court gave judgment that the said plaintiff recover of the defendant the sum of *$85.44, his damages aforesaid, in form aforesaid, etc., and that the said defendant recover of the said plaintiff his costs, since the deposit was made.
    Tho errors assigned are, first, that tho court rendered judgment against the defendant below for $85.44, the amount deposited with the clerk; second, that the court did not, by their judgment, discharge the defendant.
    Isaac Parrish, for plaintiff in error, cited:
    Swan’s Stat. 660, sec. 61; Bank of Columbia v. Sutherland, 3 Cow. 336; Baker v. Hunt, 1 Wend. 103; May v. Bethew, Ib. 191; Spalding v. Verplank, 2 Wend. 431; Graham’s Prac. 540; 2 Tidd’s Prac. 1167; 2 Saund. 101, note 1; Bowen v. Lytle, 4 Cow. 91; Manhattan Co. v. Osgood, 1 Cow. 65; Lambert v. The People, 7 Cow. 103; Law v. Nelson, 8 Cow. 746.
    No argument was submitted for defendant in error.
   Wood, J.

The principal question arises under the practice act, Swan’s Stat. 660, sec. 61, which enacts, “ that if, at any time, pending an action on any bond, bill, note, or specialty, for the payment of a sum certain, tho defendant shall bring into cour^ where the action is pending, the principal and interest due on such bill, bond, note, or specialty, and all costs, etc., the money so brought in shall be deemed and taken to be in full payment and satisfaction of such bond, etc., and the court shall give judgment to discharge the defendant from the same accordingly.”

It will be seen the deposit was of the principal and interest due on the note only. The amount of costs which had then accrued, was not included. As a statutory deposit, therefore, the plaintiff in error did not bring himself within the provision. It was no legal deposit, and judgment was correctly given for the defendant in error, on the verdict.

*The judgment for costs is erroneous. The law is, that in this class of cases, where the plaintiff recovers less than $100, he shall recover no costs — not that he shall pay costs to the defendant. The deposit being insufficient, did not lay a legal foundation for the judgment for costs, in favor of tho plaintiff in error, from the time such deposit was made. Such judgment, however, is not to the prejudice, but for the benefit of tho plaintiff in error, and he can not avail himself of it to reverse the judgment.

Judgment affirmed.  