
    GENERAL COURT,
    MAY TERM, 1791.
    Isaac M'Hard against William Whetcroft.
    THIS was an action of debt upon a bond, dated' the 24th of September, 1778, and conditioned for the payment of 442/. 10s. at or upon the 1st of September, 1788, with interest. The defendant pleaded payment before the issuing of the writ, to wit, on the 7th of March, 1781, and payment upon the day, to wit, on the 1st of September, 1788. General replications of non-payment, and issues joined.
    At October term, 1790, the jury found, by their special verdict, that the defendant, in discharge of so much of the bond on which the suit was brought, did tender bills of credit, which was a legal tender by law, to the plaintiff, to the amount of 1,175 2-3 dollars, which tender was made on the 7th of March, 1781 ; and if the said tender was good, then they found that there was 13/. Is. specie due on the said bond; but if a tender in discharge of said bond could not be made before the 1st of September, 1788, then they found due on the said bond, 88/. 10s. specie, with interest from the date of the said bond.
    The general court gave judgment on the special verdict for the plaintiff, for the penalty and costs ; to be released on payment of S8/. 10s. current money, with interest from the 24th of September, 1778, and costs. The defendant appealed to the court of appeals.
    
      This case came on for argument in the court of appeals at June term, 1794.
    Cooke, for the appellee.
    This is an action of debt on a bond, payable at a future day. Tender of paper money before the day pleaded, and demurred to ; and the question is whether, as the act which made paper a tender, provided that such tender, if legally made, might be pleaded as a payment, and an extinguishment of the debt, meant and intended to take in the preseat instance, and has accordingly done so ?
    It is contended on the part of the plaintiff below, and the defendant in appeal, that the act only meant to give a power of paying paper in those cases where the party had a right to pay or tender other money, independent of the act. That it was only to put paper on the footing of gold or silver, and that it never was in the intention of the legislature to vary the nature of the contract in other respects; but thát if gold and silver could not be paid, paper could not.
    This brings the case to the principles of the common law, which provides that all contracts and agreements shall be performed according to the agreement of the parties. Modus et convenito vincunt legem is the maxim. In this case, a distant day of payment was stipulated as well for the justice due to the obligee, as for the convenience of the obligor. It was in fact a speculation whether at that day the money would be better than it then was, or would be worse and wholly done away. The obligor agreed that he could not pay ready money, but he would pass the bond, provided he could have a distant day for payment; the obligee, on the other hand, contracts, that as I will bind myself not to call on you before that day, you shall not pay me before that period; you shall not tie my hands and be at liberty to speculate on me and pay me at the lowest state of depreciation to which paper money may be reduced; but as you take the chance of a fall, give me the chance of its rising in value. The bond therefore was taken payable at or upon, and not on or before.
    The rule of the civil law is in general true, that the distant day of payment is given for the convenience of the obligor, and therefore he may pay at any time; but it does not apply in this case, and the rule of the common law is directly the reverse.
    We know that if a payment is made at a particular place, a tender at any other would not be good, nor even a payment, unless it was accepted in satisfaction, and pleaded as such in the nature of an accord. So payment on a particular day by the contract cannot be avoided but by a strict compliance with the contract, unless it is waived by the agreement and acceptance of the party j in such case, a tender before the day is not good. It is alleged in this case by the act of assembly, a tender amounts to a payment. Let us see how the case would stand on pleadings.
    If you plead payment before the day generally, it is bad on demurrer. You must therefore plead that the obligee received and accepted in satisfaction. The obligee in such case may traverse either the payment, or, protesting against the payment, may traverse the receipt in satisfaction. 5 Co. 117. 1 Stra. 317. 2 Wils. 150. 173.
    Suppose the obligor had pleaded payment before the day in satisfaction, he ought to have gone on and said it was received in satisfaction; the obligee would have traversed the receipt and put that in issue, which must have been found in his favour.
    It is conceived, therefore, in any point of view, the case is with the appellee.
    1st. That the act did not mean to make paper a tender, or payment in cases where gold and silver would not have been so, but only to place them on the same footing.'
    3d. That the contract being to pay on a certain day, and not on or before, a tender, or payment before, would not be good unless received- and accepted in satisfaction*
    3d. In this case it was refused, and therefore the obligee is entitled to payment at the day, according to the terms of his contract.
    
      Jenings, for the appellant.
    The question is, whether a bond payable at a particular day, cannot be paid before the day, at the election of the obligor.
    There have been two different decisions on this point ' in the general court. During the time that the late Mr* Harrison was chief justice, it was determined that the day of payment was fixed for the convenience of the debtor, that he might not be compelled to pay it before the time ; but that it did not preclude him from making a payment before if he found it convenient.
    When Mr. Johnson was chief justice, the decision in the present ease took place, which is contrary to the former one. It is not contended by the appellant that the act of assembly meant to make paper a tender where gold or silver could not be tendered or paid j therefore the observation may be laid out of the case.
    It is said that modus et conventio vincunt legem is a maxim of the common law, and that the day of payment is a material part of the contract; but on this reasoning it would follow, that if there was no time mentioned, there would be no debt, yet the law makes a, different construction, and will suppose the parties meant that the money should be paid at the will of the creditor.
    The reasoning that the appellee relies on in the present instance, is, that the money could not be paid before the day, as it was a speculation whether the money would be better at that day than it was, or would be worse and wholly done away; and that the obligee ought to have' the chance of its rising in value. This reasoning certainly was never well considered, or it would not have' been advanced; for it must puzzle any man to discover how a payment before the day could have injured the obligee by preventing him from reaping any advantage by the supposed speculation. If the money had risen in value, it would have risen in value whilst in the hands of the obligee as well as in the hands of the obligor, and being in the possession of the former, he would have been certain of realizing it to the best advantage, without any disadvantage from delay, or incapacity of the obligor to make payment* It is, I believe, a new species of logic, to assert that a man can speculate better on money he is entitled to receive at a distant time than on money retained by himself But to pursue the reasoning of the appellee further, it must follow that he ought not to have had a judgment -in the court below for any sum. It is said that the contract was a speculation between the parties on the value of the money at the time of pay-merit mentioned in the bond ; the money was not worth any thing at that time, and, therefore, nothing ought to have been recovered. It is urged that the advantage of speculation shall be equal; but where is the equality of compelling, at all events, a payment to the value at the time of executing the bond with a chance of the adventitious appreciation, and to give the obligor no advantage from its depreciation or annihilation.
    It is admitted, on the other side, that the rule of the civil law is in general true, that a distant day of payment is given for the convenience of the obligor, and, therefore, that he may pay at any time; but that the rule of the common law is directly the reverse. Our rules respecting the construction of contracts are derived from the civil law, as may be easily seen by comparing the positions laid down by the civil law writers, with regard to the exposition of agreements, promises and obligations, with the decisions of the common law courts on similar subjects. What the civil law is on this point, may be seen in 1 Domat, 312. 502. where the doctrine is so explicit as to force an avowal from the opposite counsel, which is endeavoured to be eluded by a dictum (without a single authority for its support) that the common law is contrary to it. But how is this attempted to he proved ? Merely by citing cases respecting the form of pleading, and alleging that a plea of payment before the day is generally bad, which is true, as tending td an immaterial issue, when a particular day is mentioned. Where a bond is payable at or before a stated time, the party may plead he paid it before the day, according to the condition; where it is not at or before, he still has a right to pay it before the time, but then he must plead that he paid it at the day, because payment before the day is payment at the day. The rule that a distant day is given entirely for the advantage of the obligor is found* ed on reason, as no man is supposed to be injured by a payment before the time, but a debtor may be greatly injured if he has not this right of payment. A person with a heavy debt impending may be greatly hurt in his credit, which probably will not be restored until it is discharged, and his having the money in his power may not be known. .The credit of a mercantile man especially is part of his stock in trade, and it is strange that a principle should be adopted by law to injure the credit of another to no purpose. The tender law makes a tender equivalent to payment, and discharges the debt, and could the nature and circumstances of the contract be examined into, the appellant conceives he would be thought fully justified in making it.
    That he had a right to tender or pay before the day, exclusive of the explicit position in Domat, will appear in 5 Bac. 9. which expressly proves that a tender may be made to the obligee, conformable to the rule of the civil law.
    The same rule prevails in chancery, for which see 1 Vern. 394, 395.
    
      It is conceived, therefore, that in any point of view the case is with the appellant,
    
      Key and Sprigg, also, for the appellee.
   The court of appeals reversed the judgment of the ge* neral court at June term, lf94.  