39 Vt. 302 | Vt. | 1866
The opinion of the court was delivered by
The question is as to the sufficiency of the defendant’s plea to the first two counts of the plaintiff’s declaration. The first count is trespass for a sled, and the second count is trover for the same. The plea is a plea of tender of a sum of money as amends in usual form, in bar, to which the plaintiff demurs.
The action is not one in which such tender can be pleaded at common law. If a tender can be made and be successfully pleaded, it must be by virtue of some statute.' The act of 1802, (Slade’s St., 145,) which has been in force ever since, if interpreted literally, would seem to be comprehensive enough to authorize such tender, including costs, if made after the commencement of the suit, and by the time therein required before the session of the court; as it in terms extends to “any civil action.” Compiled Statutes, page 593, section. 6; General Statutes, page 724, section 7. And probably the party might tender before suit, in any case in which, under this statute, he could tender after the commencement of the action. But the practical construction of this statute has been not to extend it to actions of tort. It was so held in Hart v. Skinner, 16 Vt. 138.
But the defendant relies on the statute of 1856, now in General Statutes, page 200, section 44. This provision authorizes a tender to be made in actions of this kind; but the effect given by this statute to the tender is quite different from that given by the former statute. The former statute provides that, “ the defendant may on thl trial of the cause, and under the general issue, give such tender in evidence in bar of the action, and on proof thereof and payment of the money tendered into court, he shall recover his costs.” The statute of 1856 provides that, “if the plaintiff shall refuse to receive the same, and the defendant shall bring into court the sum so tendered, then, if in the opinion of the court the defendant acted in good faith in the matter complained of, the plaintiff shall recover no costs accruing after such tender, unless he shall recover a larger sum in
As the tender is pleaded in bar, and constitutes no defence to the action, but is only matter to be considered by the court in taxation of costs, depending for its effect on the opinion of the court as to the good faith of the defendant, and to some extent on the discretion of the court, the demurrer is sustained, and judgment reversed and judgment that the plea is sufficient, and case remanded.