Retan v. Drew

19 Wend. 304

Opinion

By the Court,

Bronson, J.

Although the action was not, for every purpose, commenced until a copy of the declaration was served on the defendant, 2 R. S. 347, § 1, 15 Wendell, 554, yet the plaintiff had before the tender employed an attorney to bring the suit, a declaration had been prepared and filed and a rule entered to plead ; and the plaintiff was proceeding with all diligence to serve the defendant with a copy of the declaration and notice of the rule. The plaintiff had incurred costs which the defendant was liable to pay, and the tender was not sufficient without an offer to pay the costs also. A different rule would work great injustice. See 3 Johns. Cas. 145; 2 Johns. R. 342; 17 Wendell, 91.

The pleader, so far as the nature of the case would permit, has followed the approval precedent of a replication where the tender was made after the suing out of process for the commencement of an action, 2 Chitty's P1. 646.

Judgment for plaintiff.