Levan v. Sternfeld

• Decision Date: 04 November 1892
• Citation: 55 N.J.L. 41,25 A. 854
• Parties: LEVAN v. STERNFELD et al.
• Court: New Jersey Supreme Court

25 A. 854

55 N.J.L. 41

LEVAN

v. STERNFELD et al.

Supreme Court of New Jersey.

Nov. 4, 1892.

(Syllabus by the Court.)

Error to circuit court, Camden county; Garrison, Judge.

Attachment by Henry Sternfeld and another against Daniel Levan. Judgment for plaintiffs. Defendant brings error. Affirmed.

The other facts fully appear in the following statement by Reed, J.:

A writ of attachment was issued against Levan at the suit of H. Sternfeld & Co. An appearance was entered by the defendant, and thereupon the said H. Sternfeld & Co. filed their narr. containing the common counts. To this the defendant pleaded non assumpsit as to all of the plaintiffs' demand except the sum of $39.70, and, as to that sum, that the defendant had tendered it, and had paid the said sum, with costs, into court. The cause was tried upon the pleadings, and a verdict was returned in the following form: "For plaintiff, $39.70, without interest or costs." Judgment was afterwards entered upon this verdict by order of the court for the sum of $39.70 damages and $59.63 costs. The defendant, by writ of error, brings the judgment imposing upon him the amount of $59 63 as costs into this court for a review.

Argued June term, 1892, before the Chief Justice and Depue, Scudder, and Reed, JJ.

Thomas E. French, for plaintiff in error.

Bergen & Bergen, for defendants in error.

REED, J., (after stating the facts.). The question discussed in the briefs of counsel is whether the defendant was liable to pay a full bill of costs upon the verdict as rendered by the jury. The defendant appears to have paid into court the sum of $37.18 as costs accruing up to the time of the alleged tender. The insistence of counsel for defendant now is that upon the record he is not liable to pay any costs, but, if he is liable to pay any, it is only those costs which accrued up to the time of the deposit of the money in court. The record is very meager. The proceedings up to the time of the verdict seem to have been irregular. From the facts set out in the plea itself, that plea was inappropriate in this case. The facts stated in the alleged plea of tender are that the amount of $39.70 and costs was tendered on February 16, 1888. This date was about four days before the affidavit to the plea was made, after the filing of the declaration, and, of course, long after the commencement of the proceedings in attachment. The transaction upon which the plea is grounded appears to have consisted entirely of the payment into court of the sum mentioned, together with the costs which had accrued, long after the commencement of the action. Now, while the plea of tender must show that the money so tendered is brought into court, or has theretofore been paid into court, (3 Chit. Pl. p. 921,) and, if the sum is not so paid, the plaintiff may sign judgment over the plea, (Pether v. Shelton, 1 Strange, 638; Chapman v. Hicks, 2 Dowl. 641,) yet the payment of money into court is in itself quite a different affair from a tender, which bars the action as to that part of the debt tendered. A tender must be made before the suing out of the writ. Bac. Abr. "Tender," tit. D. The plea must state that before the commencement of the suit the defendant was always ready to pay, and tendered to pay. 3 Chit. PI. p. 921. No instance can be found in the practice of the common-law courts in which a tender made subsequent to the commencement of the action has been countenanced as a ground for a plea of tender. It therefore clearly appears that the plea in this case, regarded as a plea of tender, is utterly without substance. There, however, very early in the practice of the common-law courts, arose a practice of permitting, after the commencement of the action, an amount of money, at the discretion of the defendant, to be paid into court. It was introduced originally for the purpose of evading the difficulty of proving a technical tender. "The plea of tender," said Chief Justice Tenterden in Leather dale v. Sweep stone, 3 Car. & P. 342, "is in practice so seldom successful that I am always sorry to see a plea of tender on the record, as I know from experience that it is so seldom made out. And Tidd says that the practice of bringing money into court is said to have been first introduced in the reign of Charles H., at the time when Kelying was chief justice, to avoid the hazard and difficulty of pleading a tender. 1 Tidd, Pr. 619. Mr. Chitty remarks, in his General Practice, (volume 3, p. 684:) "It becomes advisable for the defendant, unless it be certain that before the commencement of the action he made a legal tender that can be pleaded in bar, to pay money into court, i. e. the amount of the sum which he is assured will cover the utmost claim, leaving the plaintiff at liberty to proceed for further claim at his peril." The practice alluded to does not rest upon tender at all, for money can be paid into court where no tender has been made, or made after the...