Carleton v. Whitcher

The statute provides cc that at any time before the sitting' of any court, to which any writ shall be returnable, or at any time before judgment shall be rendered in any suit, the defendant may apply to the plaintiff’s attorney, who brought the action, and tender him the amount of the debt and costs, and such tender shall be a bar to any further proceedings in such case and the only question raised in this case is, whether a tender of any thing less than the amount of the two notes, on which the action is founded, can be adjudged a legal tender under this provision in the statute ?

It has been repeatedly decided, that where the action Is founded upon one entire demand, as a note or an account, a tender to the attorney of any thing less than the amount of the claim, is not a legal tender under the statute.

But it has also been decided, that where there are several distinct claims in a declaration, a tender of the whole amount of one of the claims with the costs, is a legal tender, pro tanto, under the statute. Houghton v. Adams, in this county, November term, 1814.

We see no reason why we should not follow these decisions, and are of opinion, that the plea in this case is sufficient.