Deering v. Parker

4 U.S. 427

• Court: New Hampshire Committee of the Privy Council
• Decided: July 15, 1760
• Status: Published

Opinion

The Lord President and Lord Mansfield expressed themselves fully in favor of the creditor’s construction of the words, “ current lawful money of New England to wit, that it did not mean bills of credit of any colony, but the words were put in contradistinction thereto. Lord Mansfield further added, that he was clear, on the one hand, that the sums indorsed ought to be allowed according to the nominal sums so indorsed, equal to the same sums of money mentioned in the bond, and that the plaintiff had no right to have the same any way reduced or altered. On the other hand, his lordship thought that the tender was not good in any respect ; for not only because it was made in a species of currency, different from that contracted for ; but also because it was out of time, being many years after the time of payment was lapsed, and also without notice. “What (said his lordship), shall a man meet his creditor in the street unawares, and tender ,a debt to him ? The chancery allows six months’ notice of time and place to be given. The law of the province enabling the court to turn itself into a court of equity, and to reduce the bond to the sum due by the auditem, was a very good thing ; and what Sir Thomas Moore, in his time, labored so hard to obtain an act of parliament for here. And because the judges (with whom he had several conferences about the matter) were for retaining the old artificial way, he declared, that he would always grant injunctions in such cases. In the present case (his lordship continued), he was at no loss to determine, that the judgment ought to be reversed : but he was at a loss what rule to go by, in determining the quantum, of the debt. Since the province bills contracted for were called in and gone ; with a desire to know the usage, he had inquired of Mr. I., a New England gentleman (who had practised the law), and was informed, that “ when old tenor had been contracted for, it had been allowed to be tendered, although depreciated in value, if the tender was *xxv 1 ma<^e season- That ^'towards the close of existence of old tenor, and after it had been called in and sunk, when judgment was given for real money, this matter (of how much to give) was greatly agitated. Some were for giving the value of the old tenor, or bills contracted for, as it stood when the obligation was out, or the debt became due. Others would have it settled, as it was when at the last and worst period ; and others again, were for taking a medium. But the more general method was, to take the value of the bills, when they should have been paid by the contract.” Lord Mansfield observed, that from this information, he had received much light, and was relieved from his difficulty. That much might be said, for taking as a rule the value of the old tenor, at the time set by the bond for payment. That, unon the mention of it, it struck him as the rule of right in general: but that, in the present case, the bond had been outstanding so very long, the bills of credit, which were the currency of the country, had, in the meantime, sunk gradually, and became, in some measure, every one’s loss : and that, therefore, in this case, he thought the loss ought to be divided between them.

The Board, upon the whole, instead of taking the price of silver at the time of the contract, and time set for the payment (which was about 27s. per ounce), fixed it at 37s. per ounce, and computed the debt accordingly. This made about 1001. sterling in favor of the appellant, by which he got the opinion of the court in his favor ; but as no costs are allowed upon appeal, he could not be much a gainer by the general result.