
    P. Hay v. C. Ousterout.
    Tender, after suit brought betore justice, of amount due and the costs then accrued, is a bar to a recovery of further costs.
    Court may conform a verdict to the intention of the jury, without consultation with them.
    This was a writ of error adjourned here for decision from the county of Fairfield. The case was this: The defendant in error commenced a suit against the plantiff in error, before a justice of the peace. After the suit was commenced, the defendant in that suit tendered to the plaintiff one dollar and fifty cents, with the costs that had accrued. This sum the plaintiff refused to accept, and proceeded to a trial before the justice, who gave judgment against the defendant for two dollars. From this judgment the defendant appealed to the court of common pleas. The plaintiff filed his declaration in assumpsit, containing the common counts. The defendant pleaded the general issue, and gave notice that he should roly upon the tender made when the suit was pending before the justice, with whom the money tendered was deposited.
    *Upon the trial the jury returned a verdict in these words “ We find for the plaintiff in the sum, of one dollar and fifty cents; tender was good; offset might have been plead in the suit before 'Squire Bush." After the jury were discharged, and without any consultation, with them, the court directed the verdict to be entered as follows: “ FPe find for the plaintiff in the sum of one dollar and fifty cents, and that the amount of the debt due, and all the costs thereon, was tendered by the said Ousterout to said Hay, in manner and form as the same is charged in the notice given by defendant."
    
    A bill of exceptions was taken to thus modeling the verdict, and the court of common pleas gave judgment for the plaintiff, for the damages found by the jury, and costs,, to reverse which this writ of ei'ror was brought.
    Irwin, for plaintiff in error.
    Ewing, for defendant in error.
   By the Court:

The jury have found that, after the commencement of the suit, the whole amount of the debt which they find to be due was tendered to the plaintiff, with the costs that had then accrued, as charged in the notice. This is finding a tender and refusal, which, upon settled principles, precludes the.party from recovering the further costs that may be incurred, by continuing to prosecute the suit. If the verdict, as directed to be -recorded by the court, can stand, the judgment is clearly erroneous as to costs, and so far, must be reversed.

It is urged against the verdict, that it involves more than the verdict, as returned by the jury, fairly warrants. But we do not think so. The general terms “ tender was good," are, in substance, the same with those recorded. The tender could have no validity to defeat the plaintiff’s action, unless accompanied by a refusal. The expressions used by the jury denoted that they had found the tender, and the matters connected with it, to be as alleged in the notice. And it was proper for the court to conform the verdict to the clear intention of the jury. Nothing more was done here ; *and there was no error in doing thus much. The judgment must be reversed as to the costs, and as to the damages affirmed. 
      
      Note. — The Hon. Jacob Burnet, being elected a senator in Congress, resigned his office of judge of this court at this stage of the business. The subsequent causes were all decided by the three remaining judges, Pease, Hitchcock, and Sherman.
     