1 U.S. 406

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U.S. Supreme Court

JOHNSON v. HOCKER, 1 U.S. 406 (1789)

1 U.S. 406 (Dall.)


Supreme Court of Pennsylvania

January Term, 1789

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 [1 U.S. 406, 408]

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