delivered the opinion of the Court.
In our view, the decision of this cause must depend upon the peculiar circumstances in which Williamson and' Fisk met and proceeded in their arrangements for the payment of the sum due on the bond and the settlement of the concern ; and also in which they separated. The sum indorsed on the bond was equal to the amount claimed as due thereon ; but not sufficient for the payment of that, and also of the price of the writ which had been made some time before. We are of opinion, that the change of the indorser had no tendency to change its character, as a legal writ from the time of its date 5 and that the same was a proper charge against the defendants j and had they made a tender, to prevent the service of the writ and prosecution of the action, they must have tendered the cost of the writ, to render the tender effectual. The object of Fisk, however, was not a tender, but payment. Do the facts before us prove a payment and settlement of the demand or not ? While Fisk was counting his money, Williamson, the attorney of the plaintiff, was writing the receipt indorsed on the bond; and as Fisk laid down the money or handed it to Williamson, he took the bond, or Williamson handed it to him, (it does not appear which ;) and while he was reading the indorsement, and Williamson was counting the mojiey, he mentioned that he had forgotten to add the cost of the writ and then claimed the payment for it. Fisk refused to pay for it and retained the bond, and Williamson refused to receive the money. In this stage of the business the parties at once separated. One was examining the receipt to see that all was right; and Williamson, as he had a right to do, was counting the money to ascertain its amount and then discovered his mistake and requested to have it rectified. From these facts it appears that the business was not completed nor the mutual rights of the parties changed by the transactions above stated. For these reasons, without any particular examination of authorities adduced on either side, our opinion is that the exceptions are sustained. The verdict is set aside, and a new trial is to be had at the bar of this Court.