delivered the opinion of the Court, at the succeeding term in Oxford.
That part of the fourth section of the ae.t of 1821, ch. 47, on which the question in this case arises, is in these words: — > & That in.any such action, the tenant or his attorney may, in tí any stagé of the process, and as often as the writ shall be “ amended, as aforesaid, offer and glvp notice in open Court,— •“ at what sum he consents that the value of the demanded pre- “ mises or such part thereof, as is by him defended, shall be esr “ timated without the buildings and improvements; which notice “ shall be entered on the record of the Court; and if the demandant f* consent to the same, judgment shall be rendered on said con-P sent of the parties, in the same manner as if the like sums had “ been found by the jury in a verdict for the demandant. But if “ the demandant shall not consent to the said offer, and shall pro- “ ceed in the suit, and the jury by their verdict shall not reduce “ the value of the buildings and improvements below the said of- “ fer, nor increase the value of the demanded premises as afore- “ said above it, he shall hot recover costs from and after the first 4! entering of such notice upon the record ; but the tenant shall from f‘ that time recover his costs,” &c. At the Court of Common Pleas the tenant made an offer of §200, for the lands demanded. This the demandants refused, and proceeded to trial. The jury estimated the lands at §175. The demandants appealed to this Court, and at this term consent to accept the §200 offered below 5 and the question is, whether under the circumstances of the case, they have a right so to do, under the statute; having once declined the offer and proceeded to trial and iudgment in the Court of Common Pleas. The provisions of the statute, are so peculiar, that in giving it a construction, we can have no aid from decided cases. By the appeal the judgment and pri- or proceedings in the Court below are vacated, and in legal contemplation, have now no existence. Neither party can resort to the verdict or proof on which it was founded, as any rule of proceeding in this Court. The statute does not provide that the tenant may withdraw his offer, in its nature it is an admission on his part. It may in some respects be compared t<j.. the practice of bringing money into Court upon the common rule; in which case, though the plaintiff be nonsuited he shall-*356Still be entitled to the money. Elliot v. Callow, 2. Salk. 597. So in case of a tender pleaded with a proferí in curia and a replication stating a subsequent demand, Cox v. Robinson, 2 Sira. 1027. So in case of money brought in on the common rule, and the judgment arrested, 2 Barn. 230. So if the plaintiff has proceeded in his suit after the bringing in of the money, 1 Barn, 198. 201. See also Burrough v. Skinner, 5 Burr. 2639. Cox v. Parry, 1 D. & E. 464. From analogy to these cases, it would seem that the demandants might elect not to proceed any further in the suit, but accept the offer made by the tenant. They certainly are not bound to proceed any further in a course of judicial investigation ; they have a right to become nonsuit at any time before the cause be opened to the jury or the trial commenced. Locke v. Wood, 16 Mass. 317. As the demand-ants have the right thus to go out of Court, we see no legal or reasonable objection to their remaining in Court, and now accepting the tenant’s offer; because the tenant has no vested rights under the verdict and judgment; the appeal has divested them by nullifying the proceedings of the Court below. We are the more satisfied with this construction of the statute, because it cannot be productive of any injury to the tenant, while, at the same time, it gives the demandants all the advantages which the law intended. The demandants, by the general provision of law, are entitled to their costs up to the time of the first entering on record of the notice of the tenant's offer, w'hich in this case was not before the fourth day of the term •, if it had then been accepted, no further costs could have arisen; but the demandants did not consent to accept it, but proceeded to trial below, and have pursued the cause into this Court, and now repenting of their perseverance, consent to accept the offer; but they are not entitled to any. costs, subsequent to the record of the notice; because all those costs have been incurred by them in making an experiment, which they have found unsuccessful, and this'expense they must bear themselves. On the other hand the tenant, according to the language of the statute, must recover his costs from the time of first entering the notice on record ; because those costs have been incurred by him, in the defence of the suit, rendered necessary by reason of the non-acceptance of his offer when the same was *357made. It will be readily perceived that the opinion we have given, and the reasoning on which it is’founded, would not apply in a case where the offer, non-acceptance, and consequent trial, all took place in this Court; or all of them in the Court of Common Pleas; and to a motion madp after such a trial, to waive the pleadings and accept the offer. As tp such a case we give no opinion.
The result is, that the demandants now have the right to accept the tenant’s offer, and to have judgment for $200.
The judgment was entered in the form following.
“ And now on' motion of the demandants’ counsel, and by leave of Court, the pleadings in this case are vvaived. And thereupon the demandants consent to, and accept the offer made by the tenant, in the Court of Common Pleas that the demanded premises should be appraised at the sum of two hundred dollars, had no buildings or improvements been made thereon.
It is therefore considered by the Court that the demandants recover of the said James Davis the sum of two hundred dollars ; they having at this term in open Court made their election to abandon the premises to the tenant at the price aforesaid, being said sum of two hundred dollars. And it is further considered by the Court that the demandants recover their legal costs up to the time of the first entering of the notice of the tenant’s said offer, viz. the fourth day of said term and no further; and it is also further considered by the Court, that .the tenant recover of the demandants his legal costs arising after the record of notice of said offer.
Note. In this case Preble J. gave no opinion, not having been present at the argument.