Both rules now came on together, when Mr. Serjeant Taddy, for the plaintiffs, submitted, that as the first bill remained in their hands as a security for the payment of the second, as well as the costs attending the execution of the warrant of attorney, which had not been paid, the action was properly brought on such original bill; and consequently that the Court had no jurisdiction to order a suggestion to be entered on the roll, as their demand was in the nature of damages, and not a debt. So, with respect to entering the verdict on one of the common counts instead of the bill, the plaintiffs were at least entitled to recover something on the count on the bill. The evidence at the trial was confined to the damages sustained by the plaintiffs from the nonpayment of that bill which was left with their attorney as a collateral security for the costs of the warrant of attorney, which the defendant had expressly stipulated to pay. In Hume v. Peploe (a) it was decided, that a plea of tender must aver a continual readiness to pay from the time the debt accrued; and consequently that such a plea after the day of payment of a bill of exchange, and before action brought, was not good; although the defendant averred, that he was always ready to pay from the time of the tender, and that the sum tendered was the whole money then due, owing, or payable to the plaintiff in respect of the bill, with interest, from the time of the default, for the damages sustained by the plaintiff by reason of the non-performance of the promise: and Lord Ellenborough there said, that (b) "an averment of touts temps prist was necessary in a plea of tender, and was one of those land-marks in pleading which ought not to be departed from :" and Mr. Justice Lawrence observed, that "it was a plea in bar of the plaintiff's demand, which 1822. DILLON V. RIMMER. 1822. DILLON υ. RIMMER. was for damages, and that therefore it ought to shew on the record that he never had any such cause of action: whereas, there the plea admitted it." Here, there was no tender or payment of the first bill; the verdict therefore must be taken to have been given for damages which accrued to the plaintiffs by reason of the non-payment of that bill, and for which the action might be supported pro tanto. Although the renewed bill was paid by the defendant, there was nothing on the face of it to shew that it was given in payment or satisfaction of the first; and at all events, it cannot be taken to have been given in payment of damages which were unliquidated, and could be only ascertained by the verdict of a jury; nor could it amount to an accord and satisfaction, as all the terms of the original agreement were not complied with. If the costs attending the warrant of attorney had been paid, a plea of accord and satisfaction would have been a good answer to the action. Even supposing the costs of the warrant of attorney to be out of the question, the plaintiffs are entitled to a verdict for one shilling, as nominal damages, on the original bill, which had never been given up, but was retained by them as a collateral security for the payment of the costs of the warrant of attorney. That instrument had reference to the original bill, which, immediately on its being dishonoured, vested a right of action in the plaintiffs, and which has not since been discharged. They were, therefore, remitted to their origi nal right, and were consequently entitled to sue the de fendant on the bill first given to them, and on which the present action was brought. Lord Chief Justice DALLAS.-The effect of these two rules are, that the verdict may be entered according to my notes as taken at the trial, with a view to deprive the plaintiffs of their costs. The facts are shortly thesethe first bill was not paid by the defendant when it be came due. The parties shortly afterwards met, when a renewed bill and warrant of attorney were given, and the defendant also promised to pay the costs of executing the latter instrument. The second bill was duly honoured; but as the defendant refused to pay the costs of executing the warrant of attorney, the plaintiffs sued him on the original bill, insisting that they had a right so to do, as the defendant had not complied with all the terms of his agreement when the substituted bill was given. Under these circumstances, I am of opinion that the present action should not have been brought, either in point of principle or justice. The second bill having been paid when due, operated as a discharge of the first. It is true, the defendant offered to pay the expenses of executing the warrant of attorney; that sum might have been recovered under the count for money paid; but there is no pretence whatever to say, that the plaintiffs were entitled to sue for it in a count on the original bill. There was no agreement that it should remain in the plaintiffs' hands as a security for the payment of the costs of the warrant of attorney. The verdict, therefore, must be entered on the common counts of the declaration. Mr. Justice PARK concurred. Mr. Justice BURROUGH.-The second bill was given in substitution for the first; and when the second was paid, the plaintiffs' right to sue on the first was altogether extinguished. Although they might have recovered the expences attending the execution of the warrant of attorney, it does not follow that they could resort to the original bill for that purpose. It appears to me, that the verdict has been entered by mistake; and if it had been confined to the money counts, as it ought to have been, it would have saved the expense of the present applications to the Court. Both rules must, therefore, be made Absolute. 1822. DILLON v. RIMMER. 1822. Monday, Nov. 25th. fendant on officer who ar rested him, in afterwards surrendered himself, two days HILL V. CHING. Where the de- MR. Serjeant Pell, on a former day in this Term, obbeing arrested, tained a rule calling on the plaintiff to shew cause why deposited cer- the several sums of 301., (being the amount of the debt -tain goods in the hands of the in this cause,) together with 10l, for costs deposited by the defendant with the constable of Dover Castle, at the lieu of bail, and time of his arrest, and which sums had been since paid over by the constable to one of the Prothonotaries of this Court, might not be paid over to the defendant, or his attorney, the former having surrendered himself in discharge of his bail. He founded his motion on an affidavit, which stated that the defendant was arrested in the last vacation, on a capias returnable on the morrow of All Souls, and that he had surrendered himself on the 11th instant. after which the officer deposit. ed with the Prothonotary the amount of the original debt, and 10%. for costs: Held, that the defendant was would be enti tled to them on his render; and if not, they must be taken to have been paid in by mistake. Quære, Whether the depositing goods with the officer on an arrest, instead of money; is a compliance with the terms of that statute? Mr. Serjeant Vaughan now shewed cause, on an affidavit of the plaintiff, which stated that the defendant on being arrested, deposited a quantity of linen-drapery goods with the constable of Dover Castle, and not the above sums of 30l. and 10l. That the arrest was made in September last, and that no bail was then taken; and that those sums were not paid into Court until the 18th instant, being ten days after the writ was returnable.Under these circumstances, the learned Serjeant contended that the defendant could not be entitled to take this money out of Court, as it was not paid at the time of the arrest. It, therefore, cannot be considered as havDeen paid in under the statute 43 Geo. 3, c. 46, as that statute requires the payment to be made at the time of the arrest; besides which, it was not paid into the hands of the Prothonotary until after the writ was returnable, and after the render. It is therefore fair to presume a collusion be IN THE THIRD YEAR OF GEO. IV. tween the defendant and the officer on the arrest, as no money was paid at that time; and as it had been since paid into Court, it should at all events, remain there, until the cause be finally disposed of. Lord Chief Justice DALLAS.-It is unnecessary now to determine whether the payment into Court of the two sums in question was made under the provisions of the statute 43 Geo. 3, or not. My brother Vaughan has contended that the money should have been actually paid at the time of the arrest, and that it should remain with the officer as a security for the original debt and costs of the arrest; which had not been done, as the defendant merely deposited a quantity of goods with the constable who arrested him. But those sums were not only after, wards produced by the defendant, but lodged in the hands of the officer of the Court. No case has been decided as to the construction of the statute in this respect; and I forbear from expressing any opinion on it, as it appears to me to be unnecessary in this case to say, whether the money must be paid at the time of the arrest, or whether a deposit of goods to ten times the amount of the original debt, would not be a sufficient compliance with the terms of the statute. The officer himself has made no affidavit as to the amount or nature of the goods deposited. If, how ever, the money had been paid in regularly under the statute, it is quite clear that the defendant would be entitled to have it paid over to him, as he had surrendered himself before it was paid into Court. So, if it were paid in improperly, or by mistake, he is equally entitled to have it returned to him. This rule, therefore, must be made absolute. Mr. Justice PARK.-I am of the same opinion. The payment was not made under the statute; and the defendant had surrendered himself before it was made; and a render is tantamount to giving bail. Assuming, how |