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The defendant resists said claim.
The following are the facts upon which the controversy de. pends: On or about the 23d August, 1854, one Samuel Bowne exe- * cuted and delivered his bond to the defendant conditioned for the payment of the just and full sum of eight thousand dollars, with interest half-yearly, on the 23d day of August, 1857, a copy of which is hereto annexed and forms parts of this case. The bond was given to secure a loan made to Bowne, amounting to $8,000, for which the defendant gave said Bowne his check upon the Chemical Bank in the city of New York, payable in gold at the option of Bowne. The defendant invested said money as trustee of another party. As a further security, Bowne and his wife executed to the defendant, at the same time, a mortgage on certain land in Richmond county, State of New York; a copy of which mortgage, which was duly recorded on the next day, is also hereto annexed. The mortgaged premises were subsequently conveyed to the plaintiff, in fee, by deed dated 28 May, 1861, subject to said mortgage, the payment of which the plaintiff assumed; the amount secured thereby having been deducted from the purchase money. On the eleventh day of June, 1862, the plaintiff desiring, as such owner in fee, to pay and discharge the mortgage, tendered to the defendant eight thousand one hundred and seventy dollars, being the amount of principal and interest up to the said eleventh day of June, 1862, in notes of the United States, issued under the act of Congress, approved February 25, 1862, entitled “An Act to authorize the issue of U. S. notes, and for the redemption and funding thereof and for funding the floating debt of the United States.” The defendant refused to receive the same as legal tender, and claimed that the re-payment should be made in gold coin of the United States, as being the money in which the loan was made.
It was thereupon agreed by and between the said parties that the defendant should receive, and he accordingly did receive the said sum of $8,170 in said notes of the United States, conditionally, and that the question whether the said notes of the United States are and were a legal tender in payment of said mortgage debt and interest should be submitted to a Court having jurisdiction, and if such Court shall decide that said notes of the United States were and are a legal tender in payment and discharge of said bond and mortgage, that then the said mortgagee should deliver up said bond and mortgage and acknowledge satisfaction thereof, and discharge the same of record; but if the Court shall decide that the said notes of the United States were not and are not a legal tender in payment of said mortgage debt, that then the plaintiff pay to the defendant the further sum of three hundred twenty-six or dollars with interest thereon from the 11th day of June, 1862, being the amount of difference at 4 per cent. between the market value of said notes and said gold coin of the United States on said eleventh day of June, 1862, and that upon payment of said sum of $3261';*, with interest, the defendant deliver up the bond and mortgage to be cancelled, and acknowledge satisfaction thereof, and discharge the same of record, and that each party, in either event, pay his own costs.
The question submitted to the Court upon this case is:
Were the said notes of the United States a legal tender on the part of the plaintiff Ż
If the Court shall decide this question in the affirmative, then judgment is to be rendered for plaintiff, ordering the defendant to deliver up said bond and mortgage to be cancelled, and to acknowledge satisfaction thereof, and discharge the same of record.
If, on the other hand, the Court shall decide the said question in the negative, then judgment is to be rendered in favor of defendant, ordering the plaintiff to pay the additional sum of three hundred and twenty-six "", dollars, with interest from the 11th day of June, 1862; and that upon the payment of this sum, with interest, the defendant acknowledge satisfaction of said bond and mortgage, and discharge the same of record, and deliver up the said bond and mortgage to be cancelled; and that each party pay his own costs in either event.
And the parties herein mutually pray for the judgment of this Court herein. Dated New York, 25th June, 1862. J. I. RoosFvFLT.
I hand to your Honors the printed argument which I submitted to the Court below, and which contains my points which I used there. I do this, that I need not take up more of the time of the Court than is necessary.
I hand up at the same time, some additional points which have been suggested to me, principally by the three different Opinions in the Court below.
CHIEF JUDGE DENIo: We will receive anything of that kind you may desire to present.
MR. RoBLKER : This case, may it please your Honors, is an appeal from the judgment of the General Term of the Supreme Court for the First Judicial District. The judgment was rendered on a case agreed upon under the statute. The facts on which the case rests, are briefly these. In 1854, one Samuel Bowne delivered to the respondent, J. I. Roosevelt, his bond and mortgage, conditioned to pay $8,000 lawful money of the United States, with interest, in August 1857. The bond was given to receive a loan of $8,000 lawful money of the United States, for which the defendant, here respondent, gave his check upon the Chemical Bank, payable in gold, at the option of Bowne, the obligor. At that time, the Bank was paying Specie to any one who desired it. As a farther security, Bowne and his wife executed a mortgage on certain lands in Richmond County, Staten Island. The mortgaged premises, subject to the mortgage, were subsequently conveyed to the present plaintiff, Lewis H. Meyer, who assumed the payment of this mortgage. The interest was regularly paid, and on the 11th of June, 1862, the plaintiff, desiring to discharge this mortgage, tendered to the defendant, here respondent, the sum of $8,000, principal, and $170 interest due from the 23d of February, to June 11, 1862. The defendant refused to receive the money, consisting of treasury notes issued under the act of 1862, as a legal tender, claiming that the payment should be made in gold coin of the United States. * It was then agreed that the defendant should receive the notes for $8,170, and to submit the question, whether those notes are and were a legal tender, to the proper Court under the Code, inasmuch as there was no diversity of opinion in regard to the facts at issue. It was further agreed, that if the Court should decide that they were a legal tender, then the defendant should be obliged to give a discharge of the mortgage and a satisfaction piece; if the Court should decide that they were not a legal tender, then it was agreed that the plaintiff should pay the additional sum of $326 78, being the amount of difference between the market value of gold coin and treasury notes, on the 11th of June, 1862, namely four per cent. The case was agreed upon, and submitted to the Court without action. It was argued in November last, before the Supreme Court at General Term, which Court decided in favor of the defendant. I beg to state that an impression has gone abroad that this is and was a “made up * case. I should not have mentioned it here, if the same impression had not prevailed with the judges in the Court below, as one of them told me that each one of them thought this was a case only got up for the purpose of a decision. Now, may it please your Honors, I wish to state, that so far from this being a case got up for the occasion, two litigants could never be more in earnest than these two parties. They do not know each other; I believe they never saw each other; and I have the more reason to speak confidently on this subject, because I was the one who