
    Wing v. Blocker.
   Pish, J.

1. Where the plaintiff in an action in a justice’s court upon an open account for a specified sum obtains a verdict for a less sum, and in his petition for certiorari makes no complaint as to the amount of the verdict, but merely alleges that the same is contrary to law and evidence, “ because there was no evidence to show that the plaintiff should pay the cost,” the complaint of the verdict should be treated as raising but a single exception thereto, viz.: that it embraced a finding of costs against the plaintiff.

2. When upon the trial of such a case in a magistrate’s court the defendant tendered to the plaintiff the exact amount which the jury afterwards found in the latter’s favor, and he refused to accept the same, he was lawfully chargeable with all the costs accruing after such refusal, but not with the costs which had accrued before the tender was made.

3. The superior court was right in sustaining the certiorari; but as the only question involved is one of costs, as indicated above, direction is given that the judgment of the superior court be so amended as to embrace an instruc- , tion to the justice’s court that, when the case is again called in that court, the verdict and judgment therein rendered be so amended as to relieve the. plaintiff in the original action of the payment of all costs save those which accrued after his refusal to accept the tender, and that after being so amended that verdict and judgment be allowed to stand.

Submitted May 1,

Decided June 11, 1902.

Certiorari. Before Judge Roberts. Montgomery superior court. December 16, 1901.

J. B. Geiger, for plaintiff in error.

W. L. Wilson, A. B. Hutcheson, and J. K. Hines, contra.

Judgment affirmed, with direction.

All the Justices concurring, except Lewis, J., absent.  