
    Westcott, Respondent, v. De Montreville, Appellant.
    1. To enable a defendant to avail himself of a want of demand on the part of the plaintiff of a sum of money claimed to be due, the defendant should set up the matter in his answer, and accompany the same with a tender of the amount due; in which case, if the plaintiff will further prosecute his suit, and shall not recover a greater sum than is tendered, he shall pay all costs. (B. C. 1855, p. 448.)
    
      Appeal from St. Louis Law Commissioner’s Court.
    
    Sterling, for appellant.
    Gardner, for respondent.
   Ewikg, Judge,

delivered the opinion of the court.

The defendant being indebted to the plaintiff in the sum of thirty-eight dollars and seventy cents, gave him a currency check on the Mutual Savings Institution of St. Louis, which was paid in currency. Shortly after, thirty dollars of the amount was returned and left with defendant’s clerk. Defendant being informed of the return of the money directed his clerk to take it back to the plaintiff, and if he refused to receive it, to deposit it with the (same) Savings Institution. The money was not received by the plaintiff, he saying he could do nothing with the currency; whereupon it was deposited'by the clerk as he was directed, a bank book having been given by the defendant to the clerk for that purpose. There was a trial by the court, a jury being waived, and judgment for the plaintiff for thirty dollars. No declaration of law or instructions were asked by either party, and the record presents no point of law for our consideration.

It may be observed with regard to the question of a demand, to which some allusion is made in counsel’s brief, that even if this were a case in which a demand was necessary prior to the institution of the suit, the want of it is not available to a party unless he expressly sets it up by way of defence in the answer or replication, and accompanies it with a tender of the amount due ; in which case, if the plaintiff will further prosecute his suit, and shall not recover a greater sum than is tendered, he shall pay all costs. (1 R. C. 1855, tit. Costs, § 34, p. 448.)

Judgment affirmed, with ten .per cent, damages;

Judge Napton absent.  