We concur with his Honor upon both points. In general, all pleas relate to the bringing of the action and are answers to the plaintiff's claim as it then exists. The plea of tender is no exception to the rule. It admits the cause of action and is a bar to its prosecution, because before its commencement the defendant had tendered to the plaintiff the money due him. This is shown by the form of the plea. In it the defendant avers "as to the said sum of $... and beforethe commencement of the suit, to wit, on, etc., aforesaid, etc." If this allegation is omitted, the plea is demurrable. Where the tender has been made at the proper time with an uncore prist, the defendant has a right to bring the money into court, because it constitutes a part of his plea; for the defendant must aver his readiness to pay the money admitted to be due, and that he hath paid the same into court, or that he now brings the same into court here ready to be paid to the said plaintiff, if he will accept the same, as the case may be. 3 Chit. Pl., 921. In Haughton v. Leary, 20 N.C. 14, it was expressly (203) decided that a plea of tender after suit brought is, as a plea, no bar. A plea, then, of tender and refusal, aptly pleaded and in due time, will bar the action and throw upon the plaintiff the costs of the suit. But though the defendant may by his negligence subject himself to the payment of the costs already accrued, he may protect himself from all that may subsequently be incurred. When he only disputes the amount to which the plaintiff is entitled he is at liberty to move the court for leave to pay into the office so much as he admits is due, together with all the costs which have accrued up to the time of making the motion; upon which the court makes the order, and the amount brought in is struck from the plaintiff's declaration. If the plaintiff accepts the
money as the full amount due, the action is, of course, at an end; but he may deny that it is sufficient to satisfy his demands, and go on to trial. In that case, if the jury find that more is due the plaintiff than is brought in, the latter is entitled to a verdict for the overplus, and the costs are paid by the defendant. On the contrary, if they find it sufficient, the plaintiff pays all the costs incurred since the rule obtained. In no case can the defendant, after failing to make a tender at the proper time and pleading it in a proper manner, bring money into court but upon a rule first obtained, 1 Sellon's Prac., 305. The rule was not obtained in this case, and the presiding judge did right in giving the instruction complained of.
PER CURIAM. No error.
Cited: Winningham v. Redding, 51 N.C. 127; Cope v. Bryson, 60 N.C. 113;Pollock v. Warwick, 104 N.C. 642; Smith v. B. and L. Assn., 119 N.C. 256.
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