delivered tbe opinion of tbe court.

Tbe appellant, tbe plaintiff below, was entitled to a verdict for $48.05, a part of tbe sum sued for. There was no denial of the claim of this sum as-made in the declaration, and tbe plaintiff was entitled, at least, to a recovery of that sum. His request for an instruction to the jury to that effect should have -been granted.

It is argued here that § 713, annotated code, is in the way of a recovery of said sum, but the. only effect of that section of tbe code is to impose upon tbe plaintiff the payment of tbe costs of .the case if he fails to recover a verdict for more than the sum tendered.

It was not the purpose of the legislature by § 713 to deprive the plaintiff of a sum of money admitted by the pleadings to be due him, nor could such purpose, if contemplated, have been effected, while sec. 14 of the constitution is in force, which declares that “no person shall be deprived of life, liberty or property except by due process of law.” The legislature cannot acquit another of á debt, without some default of the creditor; and it could be no default of the plaintiff that he declined to take $48.05 in full satisfaction of his claim of $398.05.

The plea of tender, in so far as it is pleaded in bar of the recovery of the $48.05, is manifestly bad and frivolous.

Reversed and remanded.