delivered the opinion of the court:

It clearly appears in this case, that the lightning rods sold by the plaintiff through their agents, to the defendant, were not the product or manufacture of this state, but of the state of Pennsylvania ; and it was illegal to peddle such articles without a license, unless the plaintiffs were resident merchants, who had listed their goods for taxation. It is denied that they had a license, or were such merchants, and the proof fails to show either that there was such license, or that the plaintiffs were such merchants. The rods were sold by the plaintiffs as itinerant pedlers; therefore, the-contract of sale, by virtue of the provisions of the Revised Statutes upon this subject, was void, and no recovery could be had upon it. And, although the first instruction given at the instance of the defendant, is notas full as it might, and perhaps ought to, have been, the plaintiffs are not prejudiced thereby, as there was no contrariety of testimony upon the subject of the illegality of the sale, and the jury were bound, upon this branch of the subject, to find for the defendant, except so far as he had offered to let judgment go against him. It is not material to inquire whether the second instruction upon the question of fraud contains the true principle of law or not, inasmuch as the jury, upon the other branch of the subject, could not have found otherwise than for the defendant, except to the extent of his offer.

The matter of the instruction asked by the plaintiffs was immaterial, as the suit was prosecuted -alone upon the note given as the price of the rods, and that note was void, according to the proof. There could not, therefore, be a recovery upon it to any extent, except as before stated, and the instruction asked by-the plaintiff was properly refused.

As to the amendment offered by the plaintiffs, we would remark, that if the lightning rods themselves, or their value, were allowed to be recovered by the plaintiffs, the statute, declaring the contract of sale void, would answer little or no purpose. What *353would be the use of declaring the contract void, if the articles themselves, or their value, could be recovered? We think that, to allow such a recovery, would, in a great measure, defeat the very object for which it was passed; and that the court below properly refused the amendment which was framed for the purpose of recovering the rods or their value.

The court did not err in refusing a new trial; but it erred in giving judgment in favor of the defendant for the whole costs of the suit. The defendant, according to our construction of section 703, of the Code, should only have had judgment for the costs accruing after the offer to pay $40. This offer was not accepted, and the amount recovered did not exceed that which was offered to be paid, and the defendant should have had judgment for the costs arising after the offer, but not beyond that. For this error the judgment for costs is reversed, and the cause is remanded, with directions that a judgment for costs be rendered as herein indicated; each party to pay their own costs in this court.