
    Rufus Claflin versus Jeremiah Hawes.
    In assumpsit for not paying a sum of money in bank notes, the defendant pleaded a tender, and aprofert of the notes into court; after issue joined on the tender, and found for the defendant, it appeared that the notes had not been brought into court: the plaintiff had judgment non obstante veredicto.
    
    This action was assumpsit for not paying for a yoke of oxen sold by the plaintiff to the defendant. The contract was differently stated in five several counts. To the four first counts the defendant pleaded non assumpsit, on which issue was joined. In the fifth count, the plaintiff alleged a promise to pay seventy dollars in bank notes of any of the New Hampshire banks, except the Coos Bank. To this count the defendant pleaded a tender in bar of damages, with tout temps prist, and a profert of the bank notes into court for the plaintiff. To this plea the plaintiff replied non obtulit, on which issue was also joined.
    *Both the issues thus joined having been found for the defendant on trial before the Chief Justice at the sittings here, after the last October term, the plaintiff called for the bank notes, of which the defendant had made a proferí in his plea; and it appeared that they had never been brought into Court, the defendant not bringing them in, nor delivering them to his counsel, that he might produce them.
    The plaintiff thereupon moved the Court for relief in such way as the Court could grant, and the cause was continued for advisement.
    At this term Hoar, of counsel for the plaintiff, stated the facts, and moved the Court for judgment non obstante veredicto, it being apparent from the whole record that the plaintiff was entitled to the money tendered.
    
      Dana insisted that nothing but money could be brought into Court upon a plea of tender.
   Per Curiam.

This matter ought to have been adjusted at the bar. But as this has not been done, let judgment be entered for the plaintiff on the fifth count, to which the plea of tender was made, 
      
      
         [A profert in Court was unnecessary, and should have been regarded as surplusage. 2 Kent Comm. 508, Lamb vs. Lathrop, 13 Wend. 95.—Bro. Touts temps prist, plac. 31. — Ed.]
     