# Johnson v. Hocker

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JOHNSON verʃus HOCKER.
T
On the trial of the caufe, Sergeant, in order to prove payment to the Treafure agreeably to the tender law, offered to read the following certificate to the Jury:−“ Received 29th March, 1780,
“ of Mr. George Hocker, the fum of Ł373.6.6. being two thirds
“ of a bond and intereft due to Mr. J. Johnʃon of Germantown,
“ which be reʃuʃed to receive when legally tendered to him in preʃence oƒ”
“ Balzer Hidrecks and Conrad Reedheiʃʃer ; the other one third he
“ left in my hands to be given to fuch poor and diftreffed perfon
“ as I fhall think proper objects of charity. Iʃaac Snowden, Treaf-
“ urer. ”
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 witnefs, ought to be produced and fworn. The confequence of admitting it, would be highly dangerous.
Sergeant anfwered, that what was furplufage 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 proteft of a bill of exchange, the Court would ftrike out fo much as was furplufage, but would never fupprefs the whole. Snowden could eafily on this occafion be produced ; but fimilar cafes may occur at a diftance, in which it would be impracticable, and great inconveniency and injuftice would refult from the precedent ​
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 chief justice, 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 (illegible text)Defendant infifts, that it was difcharged by a tender and (illegible text) 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 ​
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beƒore the 29th oƒ January, 1777, it is certainly conclufive againft the prefent demand. Confcientious men may, induced, reflect upon the enormous advantage of making a payment at the rate of fixty for one; but we are bound by the explicit language of the law (except where it violates the Conftitution of the State) and muft leave thofe to anfwer for its policy be whom it was enacted. But, on the other hand, how will the cafe ftand, if the tender was not made in bills of credit of a date antecedent to the 29th of January, 1777? The arguments of the counfel have differed widely on this ground ; and the queftion is, whether the words of the act apply only to the bills of credit which Congrefs had emitted ; or, extend, alfo, to thofe bills which Congrefs might emit?
The doubt, in this repfect, is not entirely novel. ABritiʃh Sergeant, having a licence in the year 1778, to carry clothing from Philadelphia to Lancaʃter for Britiʃh prifoners of war, brought with him fome forged paper money, and paffed it at the latter place. He was tried for this offence, and the diftinction as then taken that the forgery was of an emiffion fubfequent to the 29th of January, 1777. The point, however, did not prove to be material ; for, the Court, confidered the Defendant as an alien enemy, who might, indeed, be punifhable for any action makum in Jr, 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 paffed on the 20th of March, 1777, (2 State Laws 48) we find that the State paper money then omitted, was only made a tender at common law; for, the words of the act merely declare that a tender in that money fhall have the fame effect as a tender in fpecie, which is clearly no more than a fufpenfion of the intereft. The fucceeding act, paffed on the 25th of May, 1778, (2 State Laws 131.) after providing for the exchange of bills of credit iffued under the authority of the King of Great Britain, gives to the bills of credit iffued by Congrefs only the fame 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 omitted by the State; and that, as I have arleady remarked, did not (illegible text) an abfolute difcharge of the obligation. By the act of the (illegible text) 1781, tenders are declared to have no other force than that which was given to them by the laws in exiftence at the time they were made. 1State Laws 447.
The intention of the Legiflature muft be collected from the words which they have ufed , unlefs a different meaning can be manifeftly fhewn. The conftruction, then, that we have put upon the words of the act of the 20th of March, 1777, (which, by exprefs referrence, is made to govern the operation of the act of the 25th of May, 1778,) is, that the Legiflature only intended to make a tender of the Ł 200,000 bills of credits equivalent to a tender at common law. There is no fatisfactory reafon oppofed to this conftruction ; and, but for this, the act of the 29th of January, 1777, might be as well extended to the bills of credit which were ​
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afterwards as to thefe which were previoufly, emitted by Congrefs:–A matter that we are not bound, nor are we inclined to countenance.
This opinion, unanimoufly formed, mutual confulation, and full deliberation, leads to a more particular confideration 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 fubfequent to the 29th of January, 1777, they muft only give this tender the effect at common law.
It may be proper here to notice, that these were two bills of thirty dollars each, in the bundle of paper money tendered; and the Plaintiff's counfel has faid, that there (illegible text) bills of that denomination emitted prior to the 29th of January 1777. But he is certainly a thirty dollar bill emitted in 1776; and, therefore this circumftance is by no means conclufive.
But fhould the Jury, upon the whole of the evidence, find, that this tender was made in bills of credit emitted fince the 29th of January, 1777, and fo not an abfolute difcharge of the debt, they will next enquire, in what manner the band ought not to be paid? By the act of the 3d of April, 1781, it is declared, that all debts and contracts entered into between the 1ft of January, 1777, and the 1ft of March, 1781, fhall be liquidated according to the feale of depreciation. The Plaintiff, therefore, is not entitled to recover the whole Ł 500. in fpecie, but only fo much as that fum 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 intereft from the date of the tender until this action (which is to be confidered as a new demand ; was inftituted.
The Jury found a verdict in favor of the Plaintiff for Ł272. 3. 4. debt with cofts: from which, it feems, that they were of opinion, that the tender was not made entirely in bills of credit emitted beƒore the 29th oƒ January, 1777; and that purfued the directions of the Court in that alternative.