Thurston v. Blaisdell

The revised statute, of January 2, 1829, “regulating process and trials in civil causes,” enacts 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. N. H. Laws 97.

If the tender in this case is to be regarded as a tender after a suit was commenced, it was invalid, because the costs of the suit were not tendered with the debt, according to the provisions of the statute. If it be regarded as a tender before suit, it was nugatory, because the statute makes no provision for a tender to the attorney before an action is commenced.

It is not material, therefore, to enquire whether upon the failure to enter the action, by reason of the absence of the justice, the case stood as if no action had been commenced ; or whether the attorney was entitled to claim the costs of the writ which had been instituted.

Judgment for the plaintiff.