
    ANDREW COPE v. ANDREW BRYSON.
    Where? a defendant in a justice's warrant, after a trial and judgment against’ him, but before an appeal,.paid a part of the claim to the justice, who held, it till the trial above took place, and then paid it to the officer of the appellate court, it was held that under the pleas oí “ tender and refusal” and “ always ready,” the measure was unavailing.
    She proper way for a defendant to avail himself of a> payment into court, is to have a rule of court tO'permit him to do so.
    Whether a justice of the peace can make a rule to pay money into his hands which-will avail in an appellate-court — Quera?
    This was an-action of'assumpsit, tried before Diok, J., at the-Spring Term, 1861, of Jackson Superior Court.
    The suit was commenced before a -justice of the peace on a book account, for $2,50, and an order purporting to be given by the defendant to the plaintiff. The account was- admitted by the plaintiff, but the order was disputed. The justice gave-judgment- for both claims, and the. defendant prayed.- and ob-taine'd an appeal to the Superior Court,- and be then, in the same presents, but after the judgment and' appeal, tendered to the plaintiff six dollars in gold and silver, which was sufficient to cover the $2,50 and' the costs then due, which was-refused by the plaintiff! The defendant then handed the money to the magistrate and gave surety for the appeal. The appeal was returned to the court, and the defendant appeared and pleaded “general issue, payment, fender and refusal,, always ready.” The cause was continued on the doeket for several terms, and a large amount of costs accumulated. At the trial term, on the day before the trial, the magistrate gave-the money to the clerk of the court, having retained it till, then, and the clerk produced the money on the' trial.
    The plaintiff, on the trial, offered no evidence as to the sum' claimed under the order, but asked for a verdict and- judgment for the $12,50, admitted to- be due-. His Honor charged the jury, that if they believed, from the testimony, that the-amount tendered was sufficient to pay the $3,50 and the costs due at the time of the trial before the magistrate,, the defendant was entitled to a verdict.- ' Plaintiff excepted-.,
    Yerdict and judgment for defendant.- Appeal by plaintiff!.
    
      Merrimon, for the plaintiff.
    No counsel- in- this Court for the defendant,.
   PicARSON-, O'. J.

We presume the attention off his Honor was not called to Murray v. Windley, 7 Ired. 201; Winningham v. Redding, 6 Jones, 126, where the'point is directly decided against the defendant.- The- defendant ought, ás soon as the appeal was returned:' to the county court, to- have paid, the money, which he admitted to be due,, for principal, interest and costs, into court, and taken» a rule on the plaintiff “ to-take the money or proceed- further in the ease at has peril.”

Possibly, it was in the power of the justice- of the- peace,, who tried the case, to grant such a rule on the payment of the money to him before the appeal- was taken, and at first, it occurred to ns that the ruling of his Honor, might be supported on that ground, but the justice made no entry of the kind on the judgment, and the defendant went to trial on the pleas “generalissue,” “payment,” “tender and refusal,” “always ready,” and the money was not paid in by the justice until the trial term. Upon these facts and the pleaching, his Honor erred in his charge to the jury. To have availed himself of the fact that the justice had received the money before the appeal was granted, the defendant ought to have brought' it to the notice of the Court when the appeal was returned, and taken the rule on the plaintiff; or else to have obtained leave for the justice of the peace to make the entry on the judgment, and pay the money into court, so as to allow the plaintiff then “ to take the money or proceed further at his peril.” Instead of that the justice of the peace is allowed to keep the money, and the defendant relies on the plea of “ tender and refusal, always ready,” which plea can only be supported by proof that the money was tendered before the action was commenced. See the cases above cited. There is error. Venire de novo.

Per Curiam, Judgment reversed.  