Adam Winningham & Co. v. Redding

Supreme Court of North Carolina

Adam Winningham & Co. v. Redding

51 N.C. 126

DecidedDecember 5, 1858

StatusPublished

This text of 51 N.C. 126 (Adam Winningham & Co. v. Redding) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adam Winningham & Co. v. Redding, 51 N.C. 126 (N.C. 1858).

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Opinion

Battle, J.

The opinion expressed by his Honor, in the Court below, was fully'- sustained by cases previously adjudicated in this Court. See Murray v. Windley, 7 Ire. Rep. 201, and Haughton & Booth v. Leary, 3 Dev. and Bat. Rep. 21. To support the plea of tender, it must be shown that it was made before the commencement of the suit. If it were made afterwards, it cannot be pleaded as a bar j because it admits the necessity of the suit, as well as the justice of the demand, and the plaintiff ought, therefore, to have his costs. But, say the Court, in the last mentioned case, “ by the modern equitable- practice, the defendant, in such a case, pays principal, interest and costs, up to the time, into Court, and the Court lays the plaintiff under a rule to take the money, or proceed further in the case at his peril.” The defendant omitted to adopt such a course in the present suit, and the consequence is, that j udgment against him, in the Court below, for the full amount of the plaintiffs’ claim, and for all the costs, must be affirmed.

Bee Cubiam, Judgment affirmed.

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Battle, J.

The opinion expressed by his Honor, in the Court below, was fully'- sustained by cases previously adjudicated in this Court. See Murray v. Windley, 7 Ire. Rep. 201, and Haughton & Booth v. Leary, 3 Dev. and Bat. Rep. 21. To support the plea of tender, it must be shown that it was made before the commencement of the suit. If it were made afterwards, it cannot be pleaded as a bar j because it admits the necessity of the suit, as well as the justice of the demand, and the plaintiff ought, therefore, to have his costs. But, say the Court, in the last mentioned case, “ by the modern equitable- practice, the defendant, in such a case, pays principal, interest and costs, up to the time, into Court, and the Court lays the plaintiff under a rule to take the money, or proceed further in the case at his peril.” The defendant omitted to adopt such a course in the present suit, and the consequence is, that j udgment against him, in the Court below, for the full amount of the plaintiffs’ claim, and for all the costs, must be affirmed.

Bee Cubiam, Judgment affirmed.

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Bluebook (online)

51 N.C. 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adam-winningham-co-v-redding-nc-1858.