The opinion of the court was delivered by
Ross, J.This suit was commenced in the name of the intestate, who deceased before the return day of the writ. The continuances on which the defendant relies to abate the suit, were all had at the request of the defendant, except two which were occasioned by the absence of the justice of the peace before whom the writ was returnable. Under the provisions of the Gen. Sts. ch. 52, §§ 19 to 24, an action, the cause of which survives, does not abate on the death of .either party to it; but it may be prosecuted by or against the administrator or executor of such deceased party. The action is to be continued until the appointment of an executor or administrator, who may, thereupon, appear voluntarily to prosecute or defend such action. If he does not appear voluntarily, it is made the duty of the surviving party to cite him in. There is nothing in the case which shows that the administrator of the plaintiff did not appear at the next court day *720after his appointment. Hence the continuances in the justice court, did not operate as a discontinuance of the suit, and the county court properly overruled the defendant’s plea in abatement, if that plea was interposed in time, and was sufficient in form. It is averred in the plea, that it does not appear from the copies of the record sent to the county court by the justice of the peace, that the administrator ever entered in said cause. We think the-justice’s copies of the record show that the administrator did enter. It is stated that he had leave to appear and prosecute the suit, and thereupon the counsel for the defendant suggested a plea in abatement and motion to dismiss, because the plaintiff’s death had not been sooner suggested upon the record, which, we think, is a strong implication, if not tantamount to .an assertion; that the. administrator had not only had leave granted him to enter to prosecute the suit, but that he was then actually prosecuting it. If it was the duty of any one to have earlier suggested the death of the plaintiff upon the record, that duty rested upon the defendant, and he, cannot now be heard to say that he did not seasonably perform it. There was no party in court other than the defendant, to make such suggestion. The death of the plaintiff not only disabled him from appearing in the suit, but revoked all power in others to appear for him, until an administrator or executor was appointed.
We think the county court correctly declined to hold that the receiving of the tender by the plaintiff’s counsel, operated as a satisfaction, under the statute, of the plaintiff’s claim and costs. At common law a tender could not be made after the commencement of a suit. Gen. Sts. ch. 125, § 7, allows a defendant to tender the debt and accrued costs at any time after suit, to three days before the sitting of the court, if the action is brought to the county court, or to twenty-four hours- before the time of trial, if before a justice ; but it nowhere authorizes such a tender after the judgment by the justice, and before the entry of the appeal in the county court. The payment of the ten dollars could, therefore, only operate ás a payment of so much towards the debt and accrued costs. If no more should be found due the plaintiff upon the trial, for debt and accrued costs, it might have operated upon *721the subsequent costs in the suit, the same as the payment of money into court under a rule. It is not stated in the exceptions that any evidence tended to show that the defendant imposed upon the receipt of the money by the plaintiff the condition that it should be received in full satisfaction of the debt and accrued costs, and no such condition can be presumed. We think the court gave to the $10 its full effect in applying it as a payment pro'tanto to .the amount found due at that time. There was no error in the court’s directing the jury to ascertain the amount due the plaintiff at the time of the payment of the $10. The debt due to the plaintiff had not changed subsequently to that time, except what should be added to it by way of interest. That addition the court could make as well as the jury. It was in effect ordering a special verdict, which is sanctioned, both by the statute and long continued practice.
The judgment of the county court is affirmed.