It is clear that by the English authorities this offer to pay is not pleadable as a tender, and we know of no law of Massachusetts contrary to the common law on this subject. City Bank v. Cutter, 3 Pick. 414 ;1 Suffolk Bank v. Worcester Bank, ante, p. 106.

A motion has been made that the plaintiff take the money tendered, and that the defendant recover his costs. Supposing that the Court have power to establish a rule similar to that of the Court of Common Pleas in England allowing this course of proceeding, yet, as no such rule has been made and promulgated here, the motion cannot prevail. Judgment must therefore be rendered against the defendant for 35 dollars and 50 cents, and costs of suit.

Whiting asked for costs upon the plaintiff’s bill of exceptions, alleging that the plaintiff had failed to support them ; Framingham Manuf. Co. v. Barnard, 2 Pick. 532; but the claim was disallowed.

Judgment of C. C. P. affirmed.