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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. ROOSEVELT.

L. H. MEYER.

ARGUMENT

OF

BERNARD ROELKER, Esq.,

Of Counsel for Appellant.

MR. ROELKER said:

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. ROELKER: 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

acted between them. My client, Lewis H. Meyer, told me that ever since the beginning of February, 1862, he had offered to pay off this mortgage, but that Judge Roosevelt, on some pretext, or other, had put it off. My client had his money $8,000, lying idle in the bank, from the beginning of February, to the 11th of June, 1862 when I made the tender, drawing no interest, and he said he did not know what to do. I told him-" Give the money to me, and I will make a formal tender."

Thereupon on the 11th of June, 1862, I proceeded to the house of the respondent, Judge Roosevelt, and made the tender to him in proper legal form. Whereupon the respondent said that he refused to take it, and demanded gold. I said to him, "I make you a tender of the money due; take this as the money, or if you refuse it, of course, we shall feel at liberty to resort to legal remedies. I shall forthwith commence an action against you on the equity side of the Court, compelling you to give us a satisfaction piece."

It was natural that the respondent should say, "I suppose we do not disagree on the facts, and why pass through the mere legal formality of the Court, finding the facts, if we ourselves, are agreed upon them?"

If any case is a proper one under the Code, which provides that a question in difference may be submitted to a Court, I think this was such a one.

To do entire justice to the respondent, I wish to call your Honors' attention to the statement in the case, "that the defendant invested said money as trustee of another party." Your Honors will find, in looking at the bond and mortgage which are appended to this case, that the defendant and respondent does not receive that bond as a trustee-it is not executed to him as a trustee. Therefore it would seem to be a breach of trust on his part, that he should receive or take a bond and mortgage executed to him personally, and not as a trustee if he were a trustee. In explanation of this, so that there may be no misunderstanding, I beg to state that the respondent told me at the time when the case was drawn up, that we better put that in, because people talked so much about patriotism now-a-days, that he was sick of it; that it might get into

the papers, and they might talk about it. At first I objected to it. But he said it would do no harm, and that I might put it in in my own way. For that reason I put in the case simply the words" the defendant invested said money as trustee of another party." But it can have no bearing upon the legal question whether he was trustee or not.

MR. CURTIS I feel bound to state that Judge Roosevelt's relation to this mortgage is that of a trustee, in truth and in fact, although it does not so appear on the papers.

MR. ROELKER: But to do entire justice to the respondent, I wish to state that I hold in my hand his brief, printed from his own manuscript, and I will give his statement, so that there may be no prevarication-no saying that injustice had been done, or that the case had been misstated. And I do this the rather, in order to show still more certainly, that this cannot be a case "got up" for the occasion. The respondent's brief says:

"The question presented by this appeal arises out of a mortgage made to the defendant, as trustee, to secure a loan in gold of $8,000, and which was payable by its terms before the passage of the Legal Tender Act of February, 1862. It is not a case of a creditor pressing a foreclosure, nor yet strictly of a debtor seeking to redeem. The plaintiff occupies the position of a voluntary purchaser of an equity of redemption of a mortgagor, demanding in effect, an assignment of the prior and much larger interest of the mortgagee.

"For the interest of the mortgagor the plaintiff paid the price which the mortgagor demanded, and to which both parties freely assented. He now insists that he has a right to a conveyance or release from the trustee, of the other interest, upon terms dictated by himself.

"Holding certain promissory notes received by him, probably at the market rate of discount, or, which is the same thing, in payment for merchandise sold at a correspondingly higher price, he demands that the mortgagee, nolens volens, shall make an exchange of securities, not upon terms to be mutually agreed on, but dollar for dollar, whatever the inequality of value.

"This, he says, is a right given to him by an Act of Cougress which every patriot is bound to sustain; and he illustrates his own patriotism by a spasmodic effort to rid himself of the Government securities, which he had taken at a discount, and which were rapidly declining, and yet in their place, at par, a

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