1789.
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 cafe, 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 £1700. which was secured by mortgage dated the 13th 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 admitted to sell the mortgaged premisses, which he did, and Weiss (one of the witnesses who has been examined) became the purchasor, for £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, had 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 Congressbefore
