Page:United States Reports, Volume 1.djvu/418

Rh 

1789.

M'KEAN,Chieƒ Juʃtice.– We certainly fhould not permit Mr. Snowden, if he were here, to fwear that he was told that fuch perfons were prefent at the tender: But the queftion is, whether, having certified what he ought not to certify, the whole ought to be rejected? We think that it ought not. The paper fhould be admitted to prove, that payment was made to the Treafure, agreeably to the act of Affembly, at the time mentioned in the receipt. All the reft may be ftruck out ; or, indeed, only fo much as goes to that point, may be read, and admitted to be proved.

The accordingly, read to the Jury fo much of the certificate as related to the receipt, and fuppreffed the reft.

The material facts and the law arifing in the principal cafe, were ftated in the following charge to the Jury.

M'KEAN,Chieƒ Juʃtice.– The evidence that has been produced eftablifhes thefe facts:– That the Defendant owed the Plaintiff a prior debt of Ł 1700. Which was fecured by mortgage dated the 13th of April, 1768, on a mill and other real eftate ; that on this mortgage feveral payments were made at feveral times; but the intereft running eventually greatly in arrears, the Defendant was admitted to fell the mortgaged premiffes, which he did, and Weiʃs (one of the witneffes who has been examined)  became the purchafor, for Ł1750. which, it was agreed by the parties, fhould be paid to Johnʃon on Hocker's account. It appears that Weiʃs accordingly made feveral payments to Johnʃon ; and, it has been contended by the Defendant's counfel, that, calculating thefe and the previous payments, the Plaintiff's demand, including the prefent bond, had been confiderably overpaid. There does feem, indeed, to be a miftake in the fums; but of this the Jury muft judge ; for, it is in proof, that on the 24th of April, 1777, the Defendant became debtor to the Plaintiff, and gave the bond in queftion; fo that if any deceit was ufed upon the occafion, we think it is incumbent upon him to fhew it to the fatisfaction of the jury.

The Court, then, are clearly of opinion, that this bond muft be confidered as a new contract ; but, even in that Defendant infifts, that it was difcharged by a tender and the 29th of March, 1780. The tender at that time has been proved, thought there is no certainty as to any previous tenders which the Defendant has endeavoured to eftablifh: And here the great queftion arifes, whether this is to be deemed an abfolute difcharge, or only to be regarded as a tender at common law?–which necceffarily leads to a review of the various acts of Affembly upon the fubject.

The Act paffed on the 29th of January, 1777, (2State Laws 7.) declares that a tender fhall amount to an actual payment and difcharge; which is far more extenfive than a tender at common law; that operating only to fufpend the intereft ‘till a fubfequent demand and refufal have taken place. If, therefore, the tender, on this occafion, was made in Continental money emitted by Congrefs beƒore