
    John T. Keys v. James J. Roder.
    1. Practice and Pleadihq. Tender. In. an action of debt originating Before a justice of tBe peace, a mere offer By the defendant to the plaintiff of the sum claimed, Before the issuance of the warrant, cannot Bo pleaded as a valid tender in Bar of the action. The money should have Been produced and offered also, at the time of the trial Before the justice; and upon appeal to the Circuit Court, it should Be brought into Court at the time of the filing of the papers, and still held ready and produced, as a continuous offer. A mere offer of the amount to the plaintiff hy the defendant’s counsel, in the progress of the argument in the Circuit Court, would not he a valid tender, plead-able in defence of the action.
    2. Cases Cited. Keith vs. Smith, 1 Swan, 92.
    FROM SULLIVAN.
    This action of debt is from the Circuit Court of Sullivan county. At the July Term, 1856, before Judge PATTERSON, verdict and judgment were for the plaintiff. The defendant appealed in error.
    T. A. K. Nelson and Fletcher, for the plaintiff in error.
    T. D. and It. Arnold, for the defendant in error.
   Wright, J.,

delivered the opinion of the Court.

.In this case the Circuit Judge charged the jury, that the tender made before the issuance of the warrant would not avail the defendant, as' a defence to the suit, unless it appeared in evidence that the money tendered was brought into Court by the defendant; and that the tender, by the counsel of the defendant in the progress of his argument, would have no effect in the case. And that to make the tender an available defence, the proper course would have been for the defendant to have brought into Court the sum tendered, at the time of the filing of the papers in the suit in Court. There is no error in this charge. In strictness, the money tendered should have been brought in with the papers on the trial before the justice of the peace. The general proposition maintained in the plea of tender is, that the defendant has done all that was in the power of any debtor alone to do, towards the fulfilment of his obligation; leaving nothing to be done towards its completion, but the act of acceptance on the part of the creditor.

If the tender was of money, it is pleaded with an averment that the defendant was always and still is ready to pay it, and the money is produced in Court. 2 Greenl. Ev., § 600; Keith vs. Smith, 1 Swan, 92.

In the ease now before us, nothing of this sort was done; but the defendant maintained his litigation with the plaintiff, not only before the justice, but in the Circuit Court, and brought in no money till it was offered to be done by his counsel in the closing argument in the case.

There is no error in the judgment, and we affirm it.  