The opinion of the court was delivered by
Royce, J.— The question presented is, whether the facts, set forth in the plaintiff’s complaint, entitle him to a remedy by the process of audita querela. He places his right to relief in this form upon two grounds:—
1. That the written notice alone operated at once to discontinue the former suit.
*4822. That the notice and tender, combined, must have had that effect, if the notice itself had not.
We have no occasion at present to decide, what would be the effect of such a notice, in reference to this sort of remedy, if given by the party before entering his suit in court. It would, at least, be entitled to consideration by the court, on a question of granting costs to the defendant. Such was the case cited, of Mead v. Arms. But after the action has been entered in court, and costs incurred by the defendant, such a notice, given out of court, cannot have the effect contended for. By giving it that effect, we should enable a plaintiff at any time to deprive the other party of his securities for cost; for without some final action of the court, adjudging costs to the defendant, the recognizances, given to ensure his costs, could not be enforced. The first position taken in support of this proceeding is not sustainable.
It has been often decided, that an actual settlement of a pending suit will furnish a ground for this mode of relief, if either party proceeds in the action in violation of the terms of settlement. The reason is, that he thereby commits a fraud upon his adversary, and upon the court. But the notice and tender alleged in this case can justify no inference of any mutual assent of these parties, to consider the former suit as ended. The very refusal of the tender was notice to the plaintiff, that the defendant did not intend to acquiesce in the proposed discontinuance. The plaintiff should therefore have appeared at the county court, and resisted the affirmance of judgment, on the ground of his previous notice and tender, instead of resorting to this distinct and collateral process.
There is also another view in which the complaint must be adjudged defective. It contains no allegation of a continued readiness to pay the sum tendered, nor any profert of the money in court. It appears to proceed upon the ground, that the tender and refusal at once extinguished the defendant’s right to the sum tendered. But this is opposed to the settled doctrine of cash tenders. They are to be kept good, or the creditor is remitted to his previous cause of action. This principle entitled the defendant to disregard the alleged ten*483der, since it does not appear to have been preserved for his benefit.
Judgment of the county court affirmed.