— In general, payment to an attorney at law, is good on the custom of the country, particularly if he have possession of the specialty. Under particular circumstances this rule might not apply, as if notice were given that no such power was vested in the attorney. But in this case, the circumstances support the general principle ; for upon- enquiry being made for the bond, the defendant was referred by the plaintiff to the attorney.
It was objected to the payment, that it was made after the action was brought :
It has always been the practice, and very properly so, to allow discounts up to the time of the trial, but not so as to destroy the plaintiffs action, and entitle the defendant to costs; in that case, it should be considered by analogy to the case of bringing the money into Court, so as to entitle the plaintiff to a ^judgment for costs. Under the equity of the act, we think a payment to the plaintiff equivalent to bringing the money into court.
The judgment therefore of the District Court is right in reversing that of the County Court, giving costs to' the defendant, and awarding the plaintiff his. But we cannot affirm this judgment, because it goes further, and awards damages on those costs.
It must therefore be reversed with costs for that error, as to the daínages, and be affirmed as to the residue.