
    GENERAL COURT,
    MAY TERM, 1793.
    Quynn and M'Hard against William Whetcroft.
    
    THIS was an action of debt upon a bond, dated the 24th of September, 1778, conditioned for the payment of 442/. 10s. “ at or upon”, the 1st of September, 17,88, with interest thereon.
    The defendant pleaded payment on the 1st of October, 1788, according to the statute, &c. and payment on the 1st of September, 1788, according to the condition of the bond.
    The plaintiff replied the general replication of non-payment to each of the pleas, and issues were joined.
    Verdicts for the plaintiff, and the jury found the sunt of 166/. 8s. 9 1-4d. current money due upon the bond. Judgment for the penalty, &c.
    At the trial of the cause the defendant offered to prove a tender of the principal and interest due on the bond, before the 1st of September, 1788, the time the said bond was -made payable, and that the said tender was made in bills of credit, made a legal tender by the act of assembly passed in the year 1777, c. 9.
    
      Jenings, for the appellant,
    ('Whetcroft,) in the court of appeals.
    The question is, whether tender and refusal before the day is payment at the day l
    
    Where a day of payment is given, it is for the indulgence of the debtor, and although the creditor cannot sue before the day, yet the debtor may pay before the time of payment is arrived, and payment before the day is payment at the day. 9 Mod. 346. Cro. Jac. 435. 1 Vern. 395. 5 Bac. Abr. 9. Moore, 122.
    To show that though there is a fixed time for payment, the debtor may pay before, the delay being given to the debtor to enable him to acquit himself when he can, cited 1 Domat, 312. s. 4. 502. s. 5. That though sua vi, it is of no authority in a court of common law, yet, as the question before the court is entirely a question of construction, and the construction of contracts being extracted from the civil law and incorporated into the common law, it ought, therefore, unquestionably to operate as a guide to their decision.
    
      
       See the case of M‘Hard v. Whetcroft, ante, p. 85.
    
   The opinion of the court was delivered by

S. Chase, Ch. J. (Goldsborough, J.

concurring.)

The court are of opinion that no tender is legal, or can be admitted to be proved, before the day of payment mentioned in the condition of the bond. As the creditor cannot sue, so neither should he be compelled to receive, before the day; the words in the condition being “ at or Upon? which had not arrived when the tender was made.

The court are also of opinion that the act of October, 1780, c. 5. had no relation to continental contracts, where the day of payment was after the continental money was called out of circulation.

The court are, therefore, of opinion, that no evidence ought to be admitted to prove the facts stated by the defendant.

The defendant excepted, and appealed to the court of appeals.

SSucere, whether tender before the day, at common law, can stop interest?

Martin, (Attorney-General,) contra.

Tender of money in a bag is not good, unless counted out. Stra. 916. Co. Litt. 208. a. 5 Co. 115. a. Noy, 74. 1 Crompt. 512. 1 Roll. Abr. 445, 446. 2 Com. Dig. 452. Co. Litt. s. 343. 4 Leon. 245. Yelv. 38. 2 Cro. 14. 2 Vent. 109. 1 Raym. 687. 2 Cro. 499. 5 Co. 114. a. 8 Co. 92. b. Co. Litt. 202. a. 210. b. Salk. 624. Doug. 26. 659. Esp. Rep. 111. 115.

Question, whether parol evidence is admissible against a deed or written agreement ?

A contract executed with solemnity cannot be dissolved but by a contract of equal solemnity. Gilb. Evid. 176.

By the statute of 4 Anne, c. 16. s. 12. payment before the action is as good as payment on the day. Gilb. 85. 175.

No parol evidence is admissible to disannul and substantially vary a written agreement. 3 Wils. 276.

Parol evidence may be admitted to explain a deed or will when it is to support, but not where it is to destroy, the deed or will; for instance, if two Johns are named, parol evidence may be admitted to show which John was meant. 3 Wils. 276. 2 Bac. Abr. 309.

Where there is an agreement in writing executed, you cannot give parol evidence to supply any defect in that agreement as what was intended to be part of the agreement, though not inserted. 2 Eq. Abr. 48. pl. 16. Bunb. 65.

Parol evidence of what the testator intended may be given when it is only to rebut an equity j otherwise, where it is to control the law. 1 Eq. Abr. 230. pl. 1. 2 Eq. Abr. 415. pl. 5.

You cannot depart from the writing, but may argue .touching the operation thereof. 3 Wils. 276.

See 1 Fonbl. 188. in note, and the cases there cited.

The. court of appeals (June term, 1794) reversed the judgment, and awarded a procedendo.  