This was an action of debt brought upon a bond bearing date the
24th of April, 1779, and conditioned for the payment of L 500.
lawful money of Pennsylvania. To the Plaintiff's demand the
Defendant pleaded payment, and issue was thereupon joined.
On the trial of the cause, Sergeant, in order to prove payment
to the Treasurer agreeably to the tender law, offered to read the
following certificate to the Jury: 'Received 29th March, 1780, of
Mr. George Hocker, the sum of L 373.6. 6. being two thirds of a
bond and interest due to Mr. F. Johnson of Germantown, which he
refused to receive when legally tendered to him in presence of
Balzer Hidrecks and Conrad Reedheiffer; the other one third he left
in my hands to be given to such poor and distressed persons as I
shall think proper objects of charity. Isaac Snowden,
Treasurer.
Lewis, for the Plaintiff, objected to the evidence, that this
was not a certificate merely official; but containing certain extra
judicial facts, to which Snowden, like any other witness, ought to
be produced and sworn. The consequence of admitting it, would be
highly dangerous.
Sergeant answered, that what was surplusage might be rejected,
and the paper go to the Jury only as proof of the receipt of the
money. If a Notary in England introduced foreign matter into the
protest of a bill of exchange, the Court would strike out so much
as was surplusage, but would never suppress the whole. Snowden
could easily on this occasion be produced; but similar cases may
occur at a distance, in which it would be impracticable, and great
inconveniency and injustice would result from the precedent.
Page 1 U.S.
406, 407
M'Kean, Chief Justice. We certainly should not permit Mr.
Snowden, if he were here, to swear that he was told that such
persons were present at the tender: But the question is, whether,
having certified what he ought not to certify, the whole ought to
be rejected? We think that it ought not. The paper should be
admitted to prove, that payment was made to the Treasurer,
agreeably to the act of Assembly, at the time mentioned in the
receipt. All the rest may be struck out; or, indeed, only so much
as goes to that point, may be read, and admitted to be proved. The
Chief Justice, accordingly, read to the Jury so much of the
certificate as related to the receipt, and suppressed the rest. The
material facts and the law arising in the principal case, were
stated in the following charge to the Jury.
M'Kean, Chief Justice. The evidence that has been produced
establishes these facts: That the Defendant owed the Plaintiff a
prior debt of L 1700. which was secured by a mortgage dated the
23rd of April, 1768, on a mill and other real estate; that on this
mortgage several payments were made at several times; but the
interest running eventually greatly in arrears, the Defendant was
advised to sell the mortgaged premisses, which he did, and Weiss
(one of the witnesses who has been examined) became the purchasor,
for L 1750. which, it was agreed by the parties, should be paid to
Johnson on Hocker's account. It appears that Weiss accordingly made
several payments to Johnson; and, it has been contended by the
Defendant's counsel, that, calculating these and the previous
payments, the Plaintiff's demand, including the present bond, has
been considerably overpaid. There does seem, indeed, to be a
mistake in the sums; but of this the Jury must 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 question; so that if any
deceit was used upon the occasion, we think, it is incumbent upon
him to shew it to the satisfaction of the Jury. The Court, then,
are clearly of opinion, that this bond must be considered as a new
contract; but, even in that light, the Defendant insists, that it
was discharged by a tender and refusal on the 29th of March, 1780.
The tender at that time has been proved; though there is no
certainty as to any previous tenders which the Defendant has
endeavoured to establish: And here the great question arises,
whether this is to be deemed an absolute discharge, or only to be
regarded as a tender at common law? which necessarily leads to a
review of the various acts of Assembly upon the subject. The Act
passed on the 29th of January, 1777, (2 State Laws 7.) declares
that a tender shall amount to an actual payment and discharge;
which is far more extensive than a tender at common law; that
operating only to suspend the interest 'till a subsequent demand
and refusal have taken place. If, therefore, the tender, on this
occasion, was made in Continental money emitted by Congress
Page 1 U.S.
406, 408
before the 29th of January, 1777, it is certainly conclusive
against the present demand. Conscientious men may, indeed, reflect
upon the enormous advantage of making a payment at the rate of
sixty for one; but we are bound by the explicit language of the law
(except where it violates the Constitution of the State) and must
leave those to answer for its policy by whom it was enacted. But,
on the other hand, how will the case stand, if the tender was not
made in bills of credit of a date antecedent to the 29th of
January, 1777? The arguments of the counsel have differed widely on
this ground; and the question is, whether the words of the act
apply only to the bills of credit which Congress had emitted; or,
extend, also, to those bills which Congress might emit? The doubt,
in this respect, is not entirely novel. A British Sergeant, having
a licence in the year 1778, to carry clothing from Philadelphia to
Lancaster for British prisoners of war, brought with him some
forged paper money, and passed it at the latter place. He was tried
for this offence, and the distinction was then taken, that the
forgery was of an emission subsequent to the 29th of January, 1777.
The point, however, did not prove to be material; for, the Court
considered the Defendant as an alien enemy, who might, indeed, be
punishable for any action malum in se, but was not liable to the
penalties of a municipal regulation; and, on that ground, directed
the Jury to acquit him. By the act which was passed on the 20th of
March, 1777, (2 State Laws 48.) we find that the State paper money
then emitted, was only made a tender at common law; for, the words
of the act merely declare that a tender in that money shall have
the same effect as a tender in specie, which is clearly no more
than a suspension of the interest. The succeeding act, passed on
the 25th of May, 1778, (2 State Laws 131.) after providing for the
exchange of bills of credit issued under the authority of the King
of Great Britain, gives to the bills of credit issued by Congress
only the same currency and effect in payment of debts which the
above mentioned act, of the 20th of March, 1777, had given to the
bills of credit emitted by the State; and that, as I have already
remarked, did not amount to an absolute discharge of the
obligation. By the act of the 3rd of April, 1781, tenders are
declared to have no other force than that which was given to them
by the laws in existence at the time they were made. 1 State Laws
447. The intention of the Legislature must be collected from the
words which they have used, unless a different meaning can be
manifestly shewn. The construction, then, that we have put upon the
words of the act of the 20th of March, 1777, (which, by express
referrence, is made to govern the operation of the act of the 25th
of May, 1778,) is, that the Legislature only intended to make a
tender of the L 200,000 bills of credit equivalent to a tender at
common law. There is no satisfactory reason opposed to this
construction; and, but for this, the act of the 29th of January,
1777, might be as well extended to the bills of credit which were
afterwards,
Page 1 U.S.
406, 409
as to those which were previously, emitted by Congress: A matter
that we are not bound, nor are we inclined to countenance.
This opinion, unanimously formed, upon mutual consultation, and
full deliberation, leads to a more particular consideration of the
evidence; and, if the Jury think that the bills of credit, or any
part of them, which were tendered to the Plaintiff on the 29th of
March, 1780, were emitted subsequent to the 29th of January, 1777,
they must only give this tender the effect at common law.
It may be proper here to notice, that there were two bills of
thirty dollars each, in the bundle of paper money tendered; and the
Plaintiff's counsel has said, that there were no bills of that
denomination emitted prior to the 29th of January, 1777. But he is
certainly mistaken; as I remember well the trial of a man for
counterfeiting a thirty dollar bill emitted in 1776: and,
therefore, this circumstance is by no means conclusive.
But should the Jury, upon the whole of the evidence, find, that
this tender was made in bills of credit emitted since the 29th of
January, 1777, and so not an absolute discharge of the debt, they
will next enquire, in what manner the bond ought now to be paid? By
the act of the 3rd of April, 1781, it is declared, that all debts
and contracts entered into between the 1st of January, 1777, and
the 1st of March, 1781, shall be liquidated according to the scale
of depreciation. The Plaintiff, therefore, is not entitled to
recover the whole L 500. in specie, but only so much as that sum in
paper money was worth at the time the contract was entered into;
which was on the 24th of April, 1777; Nor is he entitled to any
interest from the date of the tender until this action (which is to
be considered as a new demand) was instituted.
The Jury found a verdict in favor of the Plaintiff for L
272.3.4. debt with costs: from which, it seems, that they were of
opinion, that the tender was not made entirely in bills of credit
emitted before the 29th of January, 1777; and that they pursued the
directions of the Court in that alternative.
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