2.-appli-cation. There is no appearance for appellee, and we are not advised upon what ground the court below sustained this demurrer. The proceedings geem have been irregular from the beginning, and yet, as the case now stands, plaintiff is apparently entitled to the relief asked. Before the justice, as also in the District Court, Moore was entitled to recover at least the amount of the tender, but without costs: In other words, plaintiff was bound by his tender, and could not claim that he owed defendant less than the amount thereof. And regularly and strictly the court should have so found. * J ip]ris was not done, however, but, according to the bill, the plaintiff (Moore) recovered but $8.00, with costs, taxed at $12. The j udgment being the same in the District Court, the costs of appeal were properly taxable against the party appealing. The money being all the time in the hands of the clerk, it was his duty to apply the same, when so directed and demanded by the party tendering and depositing the same, in discharge of the-costs. And plaintiff should not be harassed and burdened with the costs and expenses of an execution after such directions, because the clerk and the party controlling the suit failed, neglected and refused to discharge their duties. See Brayton v. County of Delaware, 16 Iowa, 44; Rev., §§ 3934, 3625; Freeman v. Fleming, 5 Iowa, 460; Johnson v. Triggs, 4 G. Greene, 97; Frinh & Co. v. Coe 4 Id., 555.
