Emerson v. White

76 Mass. 351

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1858
• Status: Published

Opinion

Dewey, J

The ruling of the superior court “ that for the purposes of the tender, the commencement of the action was the time when the writ was delivered to the sheriff to be served,” was not correct. After the writ was actually made, and measures taken, as in the present case, to secure the service of the same by sending it to the sheriff, a tender of the amount of the debt without the costs would not be a valid tender, although there had been no aciual delivery of the writ to the sheriff If the evidence established the fact that the writ was made out, and sent to the sheriff for service, as the bill of exceptions assumes, prior to half past nine o’clock, and the tender was not made until eleven, the court should have instructed the jury that the tender should have been of the amount of the debt and the costs that had accrued, to make it an effectual tender.

Exceptions sustained.