The opinion of the court was delivered by
Tart, J.The offer of the money to the plaintiff in August, 1888, was not a legal tender at common law, as it was after suit brought. Green v. Shurtliff,Vd Yt. 592; neither was it an effective tender under the statute, R. L. s. 1450, for the money was not brought into court, and the opinion of the court taken as to the good faith of the defendant in making the offer. The money was not paid into court under County Court rule No. 34.
While the case was pending in the County Court, the defendant, in vacation, paid the plaintiffs $455, to apply towards the damages and costs. This was a payment pro tanto, but not enough to pay the damages and costs, including those of a non-suit at the subsequent term. To collect their claim the plaintiffs had been compelled to bring suit and enter it in court, -and were *159■entitled to their taxable costs until their debt was paid, and upon payment were entitled to such sum for their costs at the subsequent term as would enable them to discontinue the suit. The liability of the plaintiffs for such costs had already become fixed. They must attend at the term, and must pay the clerk’s fees; as to them, the costs of the subsequent term had, in effect, already “ accrued,” and at the time the defendant made the payment, to relieve himself from further liability he should have paid enough to enable the plaintiffs to go out of court without expense in respect of their taxable costs. Not having done that,
Judgment is affirmed.