delivered the opinion of the Court. 1. The first cause of demurrer is clearly unfounded. The replication floes not deny the tender, but admits it, and alleges new matter in avoidance, which the defendant had a right to traverse. The replication therefore properly concluded with a verification.

2. The second reason also is insufficient. The facts pleaded show that the plaintiffs had incurred a liability for costs *90by the commencement of the suit against the principal promisor, and they could not be compelled to withdraw it and pay the costs, without an indemnity.

3. The third cause of demurrer appears to demand more consideration ; for apparently, the replication is double. It avers the refusal of the defendant to pay the costs incurred by the plaintiffs in the suit against the principal promisor, which is a sufficient reply to the plea ; and then goes on to aver, that afterwards the plaintiffs offered to receive the principal and interest due on the note, and that the defendant refused to pay the same.

The question then is, whether this latter averment may be rejected as surplusage, or must be considered as material, so that if it had. been traversed, and issue joined thereon, the issue would have been proper and decisive between the par ties. If the tender bad been pleaded in common form, with an uncore prist and a profért, then undoubtedly the replication would have been double; for the defendant might have traversed the averment in respect to costs, and that in relation to the subsequent demand and refusal, and thereon two material issues might be joined. But as the tender is not so pleaded, the latter averment is immaterial. The defence set up by the plea is, that the plaintiffs debt or right of action against the defendant was discharged by their refusal to accept the sum tendered, and if so, it could not be revived by the subsequent demand and refusal. 6 Bac. Abr. Tender, H 2 The averment, therefore, that such a demand was made and refused, is mere surplusage, which", when pleaded with matter which is material, will never vitiate a plea in other respects good. Utile per inutile non vitiatur. The superfluous matter required no answer, and if issue had been joined thereon, it would have been an immaterial issue, and would have been set aside. For these reasons, we are of opinion that the replication is good, both in form and substance, and that the plaintiffs will be entitled to judgment unless the defendant can set up some other defence on the trial on the general issue.

Replication adjudged good.